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THE  AMERICAN  PHILOSOPHY 
OF  GOVERNMENT 

ESSAYS 


BY 


ALPHEUS  HENRY  SNOW 

M 
AUTHOR    OF    "THE    ADMINISTRATION    OF    DEPENDENCIES/'    "CON- 


SIDERATIONS    IN    THE     INTEREST    OF    THE     PEOPLE     OF    THE 

PHILIPPINE  ISLANDS,"  "THE  QUESTION  OF  ABORIGINES 

IN    THE     LAW    AND    PRACTICE    OF    NATIONS.'' 


G.  P.  PUTNAM'S  SONS 

NEW  YORK  AND  LONDON 

JLDc  Iknicfterbocfter  press 
1921 


i/ 


A 


^ 


Copyright.  192 1 

by 

G.  P.  Putnam's  Sons 


Printed  in  the  United  States  of  America 


A^ 


CONTENTS 


The  American  Philosophy  of  Goverment  and  its  Effect  on 
International  Relations 

The  Declaration  of  Independence  as  the  Fundamental 
Constitution  of  the  United  States 

The  Development  of  the  American  Doctrine  of  Jurisdiction 
OF  Courts  over  States    ...... 


Execution  of  Judgments  against  States 

A  League  of  Nations  According  to  the  American  Idea 

The  Position  of  the  Judiciary     ..... 

International  Legislation  and  Administration    . 

Legal  Limitation  of  Arbitral  Tribunals 

Cooperation  vs.  Compulsion  in  the  Organization  of  the 
Society  of  Nations  ...... 


Cooperative  Union  of  Nations     ..... 

New  National  Processes  and  Organs  .... 

^HE  Mandatary  System 

Shantung  and  Spheres  of  Influence    .... 

The  Disposition  of  the  German  Colonies    . 

Judicative  Conciliation 

The  Proposed  Codification  of  International  Law 

The  Law  of  Nations 

International  Law  and  Political  Science    . 

Participation  of  the  Alien  in  the  Political  Life  of  the 
Community      .     -    . 


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453574 


ESSAYS 


THE  AMERICAN  PHILOSOPHY  OF 
GOVERNMENT 


THE  AMERICAN 

PHILOSOPHY  OF  GOVERNMENT 

AND  ITS  EFFECT  ON  INTERNATIONAL 

RELATIONS 

Reprinted  from  "The  American  Journal  of  International  Law," 
April,  19 1 4 

UNTIL  quite  recent  times,  it  would  have  been  un- 
profitable, in  the  case  of  most  nations,  to  in- 
quire what  the  philosophy  of  government  held 
by  the  people  was,  or  what  efl;ect  it  had  on  the  foreign 
relations  of  the  nation,  or  on  international  relations  gen- 
erally. There  were  few  nations  in  which  the  people  were 
so  enlightened  and  expressed  themselves  so  fully  that  it 
was  possible  to  distinguish  and  define  the  particular 
philosophy  of  government  held  by  them ;  and  even  if  it 
had  been  possible  to  do  so,  it  would  have  been  of  little 
use  to  try  to  discover  what  effect  this  philosophy  had 
on  international  relations,  since  the  fact  was  that  it 
had  little  or  no  effect.  The  people  of  each  nation,  ig- 
norant of  foreign  affairs  by  reason  of  the  difficulties  of 
travel  and  communication,  allowed  the  executive  to 
control  the  foreign  relations  under  the  advice  of  a  coun- 
cil in  the  selection  of  which  they  had  no  voice,  and 
representing  privileged  classes  of  persons  who  used  the 
power  of  the  nation  as  means  to  accomplish  such  ends 
as  they  thought  desirable. 

So  long  as  this  condition  of  things  was  general,  the 
rights  of  nations  occupied  the  attention  of  writers.    The 

5 


6      Tfhe  American  Philosophy  of  Government 

rights  of  man,  the  rights  of  peoples,  and  the  rights  of 
society  in  general  were  ignored,  as  were  the  responsi- 
bilities which  necessarily  accompany  all  rights.  Each 
nation  sought  to  aggrandize  itself  by  conquering  and 
pillaging  others,  and  the  only  restraint  on  one  nation 
trespassing  upon  another  was  that  all  the  so-called  civi- 
lized nations  were  gradually  forced,  by  the  pressure  of 
circumstances,  to  enter  into  the  playing  of  a  military 
game  of  forcible  checks  and  balances,  called  "the  bal- 
ance of  power"  or  "the  political  equilibrium." 

The  principle  of  this  game  was  very  simple,  though, 
like  most  other  games,  the  rules  for  playing  it  were 
very  intricate.  When  any  nation,  for  the  purpose  of 
direct  gain  by  pillage  of  its  neighbors  or  by  despoilment 
of  the  natives  of  barbarous  regions,  or  for  the  purpose 
of  indirect  gain  by  destroying  its  competitors  in  trade 
or  opening  up  new  trading  points,  desired  to  conquer 
adjacent  or  distant  regions — thereby  increasing  its  mili- 
tary and  naval  strength  and  paving  the  way  for 
further  expansion — the  surrounding  nations  combined 
their  military  and  naval  strength  by  alliances  until  the 
proposed  expansion  was  balanced  and  checked,  or  until 
the  opposing  nations,  or  all  the  nations  concerned,  were 
"compensated"  by  partitioning  between  them  some 
weak  country  which  had  been  crushed  in  the  course  of 
the  war.  Thus  what  was  called  the  status  quo  or  the 
"political  equilibrium"  was  maintained. 

So  long  as  the  people  of  each  nation  remained  unen- 
lightened and  were  without  full  power  to  express  their 
ideas  through  representative  institutions,  the  war-game 
of  "the  balance  of  power"  ruled  international  politics, 
and  international  disputes  were  disputes  concerning  the 
"rights  of  nations,"  and  particularly  on  points  of  "na- 
tional honor."  The  citizens  of  each  nation  had  only 
partial  and  indefinite  rights  at  home,  and  citizens  of 


The  American  Philosophy  of  Government      7 

one  nation  had  no  rights  in  another  nation  or  against  a 
foreign  government.  A  person  abroad  had  only  certain 
privileges,  and  these  usually  were  based  on  treaty. 
Breaches  of  treaty  were  considered  to  involve  the  na- 
tional honor  not  of  the  nation  breaking  the  treaty,  but 
of  the  other  nation,  and  led  to  war  or  to  a  new  disposi- 
tion of  alliances  according  to  the  rules  of  the  war-game. 
As  the  people  became  more  enlightened,  and  obtained 
an  increasing  participation  in  their  own  government  by 
representation  and  by  compelling  their  governments  to 
be  responsible  to  them,  there  gradually  arose  in  each 
nation  a  popular  philosophy  of  government,  in  which 
the  rights  of  individuals,  of  peoples,  and  of  human  soci- 
ety in  general,  were  distinguished  from  the  rights  of 
nations.  The  houses  of  representative  legislatures,  and 
particularly  the  houses  directly  representing  the  people 
of  the  nation,  as  their  members  became  increasingly 
better  informed  concerning  foreign  affairs  through  in- 
creased facilities  for  travel  and  intercourse,  insisted 
with  greater  and  greater  force  that  the  philosophy  held 
by  the  people  should  have  its  effect  upon  foreign  rela- 
tions as  well  as  upon  domestic  affairs.  The  war-game 
of  the  balance  of  power  everywhere  came  under  criti- 
cism. At  the  present  time  its  principles  are  beginning 
to  be  known,  and  there  is  a  growing  understanding  of 
its  intricate  rules.  The  classes  and  interCvSts  which  have 
heretofore  had  the  monopoly  of  this  knowledge,  and 
which  in  all  sorts  of  secret  ways  were  able  to  use  the 
nation  and  deterrnine  its  moves,  are  being  haled  into 
the  daylight  and  exposed  to  the  destructive  power  of 
publicity.  Indeed  the  danger  at  the  present  time  is. 
that  in  the  control  by  the  people  of  each  nation  over 
national  and  international  affairs,  the  just  rights  of  na- 
tions to  live  and  protect  themselves,  and  to  be  the 
guardians  of  the  rights  of  individuals,  of  peoples  and 


8      The  American  Philosophy  of  Government 

of  society  at  large,  will  be  ignored,  and  that  the  whole 
structure  of  organized  society  will  be  weakened,  to  the 
detriment  of  individual  liberty. 

It  becomes,  therefore,  important  to  consider  the 
philosophy  of  government  held  by  the  people  of  each 
nation,  and  particularly  of  those  which  have  advanced 
farthest  along  the  path  of  popular  government,  for  the 
purpose  of  ascertaining  how  this  philosophy  is  likely 
to  affect  international  relations.  It  is  particularly  de- 
sirable to  consider  the  philosophy  held  by  the  people  of 
the  United  States,  and  extended  to  its  annexed  coun- 
tries, since  this  is  one  of  the  two  great  philosophies  of 
popular  government  now  prevailing  in  the  world;  the 
other  being  that  held  by  the  people  of  Great  Britain, 
which  has  extended  more  or  less  completely  to  the  self- 
governing  states  of  the  British  Empire,  and  to  the  na- 
tions of  the  Continent  of  Europe. 

Every  philosophy  of  popular  government  tends  to  the 
establishment  and  enlargement  of  the  rights  of  the 
individual.  When  we  speak  of  "popular  rights,"  we 
mean  the  rights  of  the  individual.  It  is  true  we  may 
speak  of  the  rights  of  one  people  against  another,  or  the 
rights  of  society  against  peoples,  but  these  are  figurative 
expressions.  They  all  come  down,  in  the  last  analysis, 
to  the  rights  of  the  individual.  The  important  thing, 
therefore,  in  examining  a  philosophy  of  government  held 
by  the  people  of  a  nation  is,  to  reach  a  definite  idea 
concerning  what  the  rights  of  the  individual  are  under 
this  philosophy,  into  what  classes  and  grades  they  are 
divided,  how  they  are  considered  to  arise,  whether  they 
are  considered  to  be  against  the  government  or  against 
all  governments  as  well  as  against  other  individuals, 
and  how  it  is  considered  they  ought  to  be  safeguarded. 
The  crux  of  the  whole  matter  is,  however,  whether 
the  individual,  according  to  the  philosophy  of  govern- 


The  American  Philosophy  of  Government      9 

ment  held  by  the  people  of  the  nation  has  rights  against 
the  government,  and,  if  so,  why  and  to  what  extent? 
It  is  particularly  important  to  inquire  whether  they 
base  the  rights  of  the  individual  against  the  government 
on  grounds  which  logically  require  them  to  hold  that 
all  individuals  have  rights  against  all  governments.  If 
the  people  of  a  nation  do  hold  that  there  are  rights  of 
individuals  against  governments,  and  particularly  if 
they  hold  this  idea  for  reasons  which,  logically  followed 
out,  require  them  to  hold  that  all  individuals  have 
rights  against  all  governments,  this  philosophy  is  bound 
to  have  an  effect  upon  international  relations. 

There  can  be  no  doubt  but  that  the  proposition  that 
there  are  certain  rights  of  the  individual  against  the 
government  does  form  the  most  fundamental  part  of 
the  American  philosophy  of  government.  We  are  ac- 
customed to  see  every  branch  of  our  government  care- 
fully scrutinizing  every  governmental  action  lest  it  may 
be  found  to  infringe  certain  rights  of  the  individual. 
Every  governmental  agency,  from  the  Congress  and 
the  President  downwards  throughout  the  United  States, 
and  from  the  Legislature  and  Governor  downwards 
throughout  the  States,  is  bound  by  certain  express  con- 
stitutional prohibitions  which  are  designed  fgr  the 
protection  of  these  rights,  and  if  these  constitutional 
prohibitions  are  infringed  by  governmental  action,  the 
action  is  nullified  by  the  Supreme  Court  of  the  United 
States  or  by  the  court  of  final  jurisdiction  in  the  State. 
Thus  the  conception  that  there  are  certain  rights  of  the 
individual  against  governments,  which  no  government 
can  infringe  except  upon  penalty  of  having  its  act  nulli- 
fied, is  a  very  living  one  among  the  people  of  the  United 
States. 

If  the  people  of  the  United  States  held  that  these 
rights  were  merely  rights  which  they  thought  it  expe- 


10    The  American  Philosophy  of  Government 

dient  for  their  citizens  to  have,  their  citizens  would  have 
these  rights  merely  as  citizens.  Such  a  doctrine  would 
make  little  difference  to  the  rest  of  the  world.  Any 
rights  which  we  think  it  merely  expedient  that  our 
citizens  should  have  at  home  are  of  course  of  little  effect 
abroad.  But  we  do  not  base  our  belief  in  these  rights 
of  the  individual  against  the  government  upon  any 
grounds  of  national  expediency.  We  assert  that  every 
citizen  of  the  United  States  has  certain  rights  against 
all  other  persons  and  against  all  governments,  because 
these  rights  arise  out  of  the  necessities  of  human  nature 
and  because  it  is  essential  to  human  society  that  every 
individual  should  have  these  rights.  We  say  that  these 
are  "fundamental  rights"  and  are  not  only  universal 
but  are  ** unalienable" — that  is,  that  persons  cannot 
convey  them  to  governments  and  thereby  give  govern- 
ments absolute  power  over  them.  This  makes  our  philo- 
sophy international,  as  well  as  national.  Our  people 
and  all  who  dwell  in  our  midst  or  under  our  juris- 
diction, have  fundamental  rights  against  our  govern- 
ments not  merely  as  citizens  of  the  United  States,  or  as 
under  its  protection  or  jurisdiction,  but  as  human  beings 
living  in  the  society  of  other  human  beings.  These 
fundamental  rights,  according  to  our  philosophy,  must 
therefore  arise  under  a  law  growing  out  of  the  necessi- 
ties of  human  nature,  which  is  supreme  over  the  United 
States  and  over  all  individuals,  peoples,  and  nations, 
and  which  arises  from  the  act  of  a  legislator  external  to 
the  United  States. 

What  then,  are  these  fundamental  rights  which  thus 
arise  under  a  law  made  by  the  legislative  act  of  a  power 
external  to  and  supreme  over  the  United  States,  and 
what  is  this  external  and  supreme  law  under  which  we 
consider  these  rights  to  exist? 

The  Declaration  of  Independence  contains  the  only  af  - 


The  American  Philosophy  of  Government     1 1 

firmative  statement  concerning  these  fundamental  rights 
and  this  external  and  supreme  law.  In  the  preamble,  it 
is  said :  "We  hold  these  truths  to  be  self-evident :  That 
all  men  are  created  equal ;  that  they  are  endowed  by  their 
Creator  with  certain  unalienable  rights,  that  among 
these  are  life,  liberty,  and  the  pursuit  of  happiness;  that 
to  secure  these  rights,  governments  are  instituted  among 
men,  deriving  their  just  powers  from  the  consent  of  the 
governed."  Thus  the  Declaration  divides  all  rights  of 
individuals  into  two  classes.  In  the  first  class  are  cer- 
tain unalienable  rights  with  which  each  man  is  endowed 
by  his  Creator,  and  among  which  are  the  rights  of  life, 
liberty,  and  the  pursuit  of  happiness;  in  the  second 
class  are  all  other  rights.  This  first  class  the  Supreme 
Court  of  the  United  States  calls  "fundamental  rights"; 
the  second  class  it  calls  "artificial  or  remedial  rights," 
since  the  rights  of  the  second  class  must  be  consist- 
ent with  and  in  aid  of  those  of  the  first  class.  The 
fundamental  rights  are  "recognized,  but  not  created,  by 
the  Constitution;"  that  is  to  say,  by  the  people  of  the 
United  States,  through  the  Constitution.  (Logan  v. 
United  States,  144  U.  S.,  263,  293.) 

The  artificial  or  remedial  rights  are  created  by  the 
people  or  the  government  of  the  United  States,  or  by 
the  peoples  or  the  governments  of  the  States.  The  Su- 
preme Court  says  of  these  rights  that  they  are  "peculiar 
to  our  own  system  of  jurisprudence:"  thus  distinguish- 
ing them  from  fundamental  rights,  which  are  of  course, 
in  our  view,  common  to  every  system  of  jurisprudence, 
including  the  international  system.  (Downes  v.  Bid- 
well,  182  U.  S.,  244,  282.) 

The  definition  of  the  fundamental  rights  of  the  indi- 
vidual as  including  his  rights  of  "life,  liberty,  and  the 
pursuit  of  happiness,"  given  in  the  Declaration,  is  too 
indefinite  for  practical  use.     When,  however,  we  go 


t^ 


12    The  American  Philosophy  of  Government 

back  to  the  literature  of  the  Revolutionary  period  and 
use  it  as  a  contemporary  exposition  of  the  meaning  of 
these  words,  the  definition  becomes  clear  and  practical. 
The  fundamental  or  common  rights  are  those  corre- 
sponding to  the  common  attributes  which  all  men  have 
as  a  necessary  part  of  their  human  nature  and  as  essen- 
tial to  the  existence  of  human  society.  These  attributes 
are  life,  the  power  to  move  and  the  power  to  use  lands, 
things,  and  forces  in  the  pursuit  of  happiness.  Inas- 
much as  these  common  attributes  with  which  all  are 
equally  endowed  by  and  at  their  creation  give  rise  to 
common  necessities,  it  follows,  as  we  believe,  that  there 
must  be  a  supreme  and  fundamental  law  of  human 
society  recognizing  these  common  attributes  and  these 
common  necessities  and  conferring  rights  upon  each  in- 
dividual to  satisfy  his  necessities.  The  fundamental 
rights  of  the  individual  may  thus  be  stated  to  be  the 
right  to  so  live,  to  so  move,  and  to  use  such  part  of  the 
land,  things,  and  physical  forces  of  the  universe  for  his 
support  and  happiness,  as  is  consistent  with  the  common 
and  equal  right  of  every  other  individual  to  such  life, 
to  such  motion,  and  to  the  use  of  lands,  things,  and 
forces  for  the  same  purpose.  Though  these  fundamen- 
tal rights  cannot  be  alienated  by  any  individual  to  any 
person  or  government,  the  individual  may  of  course 
forfeit  them  to  society  for  anti-human  and  anti-social 
acts  done  by  him,  and  it  is  the  function  of  governments, 
subject  to  the  ultimate  superintendence  of  the  people 
of  each  nation,  to  adjudicate  the  total  or  partial  for- 
feiture of  these  rights  by  due  process  of  law  and  to 
enforce  forfeitures  so  adjudicated.  The  right  of  an 
individual  to  use  exclusively  lands,  things,  or  forces, 
which  we  call  property,  is  evidently  to  some  extent  a 
fundamental  right  and  to  some  extent  an  artificial  right. 
Thus  the  Declaration  does  not  regard  property  as  a 


The  American  Philosophy  of  Government     13 

fundamental  right.  On  account,  however,  of  the  diffi- 
culty of  determining  the  extent  of  property  which  the 
individual  may  own  as  a  matter  of  fundamental  right, 
we  protect  all  the  property  which  an  individual  owns, 
equally  with  his  life  and  liberty,  so  as  to  prevent  it 
from  being  taken  from  him  "without  due  process  of 
law," — thus  requiring  proper  legislative  action,  proper 
judicial  determination  and  proper  executive  action  as  a 
precedent  to  the  forfeiture. 

The  nations  which  recognize  the  fundamental  rights 
of  the  individual  have  various  expedients  for  safeguard- 
ing them.  These  rights  may  evidently  be  infringed  by 
individuals  or  by  governments.  The  courts  in  every 
civilized  country  are  the  especial  guardians  of  funda- 
mental rights  in  so  far  as  the  customary  law  is  con- 
cerned. Courts  everywhere  refuse  to  apply  customs  as 
rules  of  law  when  the  customs  are  contrary  to  funda- 
mental rights.  But  when  the  legislature  has  enacted  a 
law,  the  courts  of  most  nations  are  powerless  to  consider 
whether  it  infringes  the  fundamental  rights  of  the  indi- 
vidual. Thus,  in  most  nations,  the  individual  has  no 
rights  against  the  government,  or  at  least  against  the 
legislative  branch.  Experience  has  shown,  however, 
that  each  individual  has  quite  as  much  to  fear  from  the 
action  of  governments — even  from  the  popular  legis- 
latures— in  infringing  his  fundamental  rights  as  from 
other  individuals.  A  government,  or  the  legislative 
part  of  it,  is,  after  all,  only  a  group  of  individuals,  and 
it  may,  like  any  other  group  of  individuals,  violate  the 
fundamental  rights  of  individuals.  Even  if  the  govern- 
ment is  directly  responsible  to  the  will  of  the  majority 
of  the  electors,  the  majority  may  compel  the  govern- 
ment to  violate  the  fundamental  rights  of  the  individual 
unless  some  way  is  found  for  nullifying  such  govern- 
mental acts  even  though  commanded  by  the  majority. 


14    The  American  Philosophy  of  Government 

The  British  system  of  responsible  government  recog- 
nizes the  fundamental  rights  of  the  individual,  but  gives 
no  protection  to  the  individual  against  infringement  of 
his  rights  by  the  government  except  by  concentrating 
responsibility  in  a  small  committee  called  the  Cabinet, 
and  making  the  tenure  of  office  of  the  Cabinet  depend 
upon  its  having  a  majority  in  the  popular  House.  The 
theory  is  that  if  the  Cabinet  attempts  to  induce  any 
branch  of  the  government  to  infringe  the  fimdamental 
rights  of  the  individual,  or  sanction  such  an  infringe- 
ment, it  will  lose  its  majority  and  go  out  of  power,  to 
be  supplanted  by  a  Cabinet  which  will  see  that  these 
rights  are  protected. 

The  people  of  the  United  States  have  adopted  a  differ- 
ent method  of  protecting  these  fundamental  rights.  In 
the  Constitution  of  the  United  States,  and  in  the  State 
Constitutions,  are  inserted  prohibitions  upon  certain 
forms  of  governmental  action  found  by  experience  to  be 
likely  to  occur  if  not  prohibited,  and  which  endanger 
or  destroy  the  fundamental  rights  of  the  individual. 
These  prohibitions  are  the  most  fundamental  parts  of 
the  Constitution,  and  no  governmental  powers  can  be 
exercised  contrary  to  them.  That  is  to  say,  they  are 
supreme  over  all  the  rest  of  the  Constitution  and  over 
all  governmental  action  which  the  particular  Constitu- 
tion affects.  The  Supreme  Court  of  the  United  States 
has  said — to  repeat  what  has  been  above  quoted  with 
its  immediate  context — that  there  are  "certain  funda- 
mental rights,  recognized  and  declared,  but  not  granted 
or  created  by  the  Constitution,  and  thereby  guaranteed 
against  violation  or  infringement  by  the  United  States, 
or  by  the  States,  as  the  case  may  be."  The  following 
is  a  collation  of  the  provisions  of  the  Constitution  of 
the  United  States,  prohibiting  certain  kinds  of  govern- 
mental action  by  the  Government  of  the  United  States 


The  American  Philosophy  of  Government    15 

for  the  protection  of  fundamental  rights,  which  has 
received  the  approval  of  the  Supreme  Court.  (Logan 
V.  United  States,  144  U.  S.  263,  293.) 

(This  collation  was  made  in  the  Instructions  of  the  Presi- 
dent to  the  Commission  for  taking  over  the  Civil  Govern- 
ment of  the  Philippines  from  the  Military  Authorities, 
dated  April  7,  1900,  and  is  quoted  in  Kepner  v.  United 
States,  196  U.  S.  100,  123.  In  those  instructions  it  was 
declared  that  "there  are  certain  great  principles  of  govern- 
ment which  have  been  made  the  basis  of  our  governmental 
system,  which  we  deem  essential  to  the  rule  of  law  and  the 
maintenance  of  individual  freedom,"  and  that  "there  are 
certain  practical  rules  of  government  which  we  have  found 
to  be  essential  to  the  preservation  of  these  great  principles 
of  liberty  and  law."  The  above  quoted  constitutional  pro- 
hibitions were  spoken  of  as  the  "rules  of  government" 
which  are  "inviolable."  See  further  on  this  subject  an 
article  on  "The  American  Philosophy  of  Government  and 
its  Application  to  the  Annexed  Countries,"  by  the  author 
of  this  article,  in  the  Proceedings  of  the  American  Political 
Science  Association  for  191 3,  Vol.  10,  p.  76.) 

"  That  no  person  shall  be  deprived  of  life,  liberty,  or  prop- 
erty, without  due  process  of  law;  that  private  propertv  shall 
not  be  taken  for  public  use  without  just  compensation;  that 
in  all  criminal  prosecutions  the  accused  shall  enjoy  the 
right  to  a  speedy  and  public  trial,  to  be  informed  of  the 
nature  and  cause  of  the  accusation,  to  be  confronted  with 
the  witnesses  against  him,  to  have  compulsory  process  for 
obtaining  witnesses  in  his  favor,  and  to  have  the  assistance 
of  counsel  for  his  defense;  that  excessive  bail  shall  not  be 
required,  nor  excessive  fines  imposed,  nor  cruel  or  unusual 
punishment  inflicted;  that  no  person  shall  be  put  twice  in 
jeopardy  for  the  same  offense,  or  be  compelled  in  any  crimi- 
nal case  to  be  a  witness  against  himself;  that  the  right  to  be 
secure  against  unreasonable  searches  and  seizures  shall  not 
be  violated;  that  neither  slavery  nor  involuntary  servitude 


1 6    The  American  Philosophy  of  Government 

shall  exist  except  as  a  punishment  for  crime;  that  no  bill  of 
attainder  or  ex  post  facto  law  shall  be  passed;  that  no  law 
shall  be  passed  abridging  the  freedom  of  speech  or  of  the 
press  or  the  rights  of  the  people  to  peaceably  assemble 
and  petition  the  government  for  a  redress  of  grievances; 
that  no  law  shall  be  made  respecting  an  establishment  of 
religion  or  prohibiting  the  free  exercise  thereof,  and  that 
the  free  exercise  and  enjoyment  of  religious  profession  and 
worship  without  discrimination  or  preference  shall  forever 
be  allowed." 

The  Supreme  Court  has  said  of  this  collation  of  Con- 
stitutional prohibitions : 

These  words  are  not  strange  to  the  American  lawyer  or 
to  the  student  of  Constitutional  history.  They  are  the 
familiar  language  of  the  Bill  of  Rights,  slightly  changed  in 
form,  as  found  in  the  nine  amendments  to  the  Constitution 
of  the  United  States,  with  the  omission  of  the  provision 
preserving  the  right  of  trial  by  jury  and  the  right  of  the 
people  to  bear  arms,  and  adding  the  prohibition  of  the 
thirteenth  amendment  against  slavery  or  involuntary  servi- 
tude except  as  a  punishment  for  crime,  and  that  of  Art.  i, 
§9,  to  the  passage  of  bills  of  attainder  and  ex  post  facto  laws. 
These  principles  .  .  .  were  carefully  collated  from  our 
own  Constitution,  and  embody  almost  verbatim  the  safe- 
guards of  that  instrument  for  the  protection  of  life  and 
liberty.     (Kepner  v.  United  Stares,  195  U.  S.  100, 122, 123.) 

The  Supreme  Court  has  itself  definitively  attached 
to  the  rights  secured  by  these  Constitutional  prohibi- 
tions the  name  of  "fundamental  rights."  (Hawaii  v. 
Mankichi,  190  U.  S.  197,  217;  Kepner  v.  United  States, 
195  U.  S.  100,  123;  Dorr  v.  United  States,  195  U.  S. 
138,  144,  148.) 

Substantially  these  same  Constitutional  prohibitions 
against  governmental  action  are  inserted  in  the  Con- 


The  American  Philosophy  of  Government    17 

stitutions  of  the  various  States  of  the  Union.  Through 
the  interpretation  and  appHcation  of  these  prohibitions 
of  the  Constitutional  Bill  of  Rights,  made  by  the 
Supreme  Court  of  the  United  States  as  respects  govern- 
mental action  of  the  United  States,  and  by  the  courts 
of  final  jurisdiction  in  the  States  as  respects  govern- 
mental action  of  the  States,  the  principles  of  this  su- 
preme universal  law  under  which  the  fundamental 
rights  of  the  individual  exist,  are  being  gradually 
evolved  by  a  process  of  exclusion  and  inclusion.  Of 
course  the  courts  cannot  be  allowed  to  have  absolute 
finality  in  making  decisions  of  such  great  importance, 
which  involve  the  interpretation  and  application  of  a 
law  which  is  supreme  over  the  people  of  every  nation 
and  over  every  nation,  and  the  nullification  of  acts  of 
popular  legislatures.  Where  decisions  made  by  courts 
are  believed  by  the  people  of  the  nation  to  have  been 
based  on  a  wrong  interpretation  or  application  of  these 
fundamental  constitutional  prohibitions — that  is,  on  a 
wrong  interpretation  and  application  of  this  supreme 
universal  law — the  people  of  each  State  or  of  the  nation 
may  and  doubtless  ought  to  arrange  for  some  appro- 
priate process  of  revision,  but  every  revisionary  process 
must  be  so  arranged  and  safeguarded  that  it  will  be 
most  likely  to  result  in  the  fundamental  rights  of  the 
individual  being  secured  to  him.  The  practice  of  in- 
trusting the  courts  of  final  jurisdiction  with  this  great 
function  is  on  the  whole  satisfactory  to  the  people  of 
the  United  States,  since  if  the  courts  err  they  may  also 
correct  themselves  in  later  decisions ;  and  the  theoretical 
right  of  the  people  to  provide  a  revisionary  tribunal  or 
process  or  to  exercise  direct  revisionary  power,  is  not 
likely  often  to  be  insisted  upon.  There  is  great  danger 
to  the  fundamental  rights  of  the  individual  in  revision- 
ary action  by  direct  popular  vote,  or  even  by  a  special 


1 8    The  American  Philosophy  of  Government 

tribunal  or  a  special  form  of  legislative  action.  The 
people  of  the  United  States  are  fully  alive  to  these 
dangers,  and  there  seems  to  be  every  probability  that 
our  system  will  never  be  essentially  changed,  and  that 
such  changes  as  are  made  will  be  for  the  purpose  of 
rendering  it  more  perfect. 

It  follows  from  the  American  philosophy  of  govern- 
ment that  we  regard  all  our  organized  communities — 
even  the  United  States  and  the  States — as  corporations. 
The  citizens  of  the  State  or  of  the  nation  are  the  mem- 
bers of  the  corporation,  and  the  government  is  a  gov- 
erning agency  or  governing  board.  The  object  of  all 
government,  as  we  view  it,  is  to  secure  the  fundamental 
rights  of  the  individual,  and  the  powers  of  governments 
are  limited  to  this  purpose.  Every  organized  com- 
munity is,  by  virtue  of  the  fact  that  it  is  a  corporation, 
democratic  and  representative.  Corporations  may  of 
course  form  themselves  into  a  corporation  and  fre- 
quently do  so  when  the  operations  are  widely  extended 
— the  greater  corporation  so  created  being  given  super- 
intending power  for  the  general  purposes.  We  apply 
this  same  idea,  and  our  States  as  corporations  have 
formed  themselves  into  a  federal  corporation  or  federal 
nation.  Thus  the  American  philosophy  of  government 
necessarily  results  in  democratic,  representative,  and 
federal  institutions. 

The  fact  that  some  of  the  peoples  of  the  world  are 
beginning  to  hold  a  philosophy  of  government  which 
distinguishes  between  fimdamental  rights  and  artificial 
rights,  has  already  had  a  profound  effect  upon  inter- 
national relations  and  is  likely  to  have  still  greater 
effects;  for  out  of  the  acceptance  of  the  belief  in 
fundamental  rights  grows  the  belief  in  the  rights  of 
individuals  against  governments,  and  of  the  propriety 
and  necessity  of  constitutional  prohibitions  imposed  by 


The  American  Philosophy  of  Government    19 

peoples  or  by  society  at  large  upon  governments,  for 
the  protection  of  these  rights.  The  individual  thus  be- 
comes a  subject  of  the  public  international  law,  as  well 
as  the  nations.  The  old  theory  that  international  law, 
or  the  law  of  nations,  was  concerned  solely  with  the 
rights  of  nations  is  already  modified.  We  look  at  the 
real  parties  in  interest,  and  discover  that  in  an  increas- 
ing number  of  cases  an  individual  or  a  group  or  class  of 
individuals  is  the  real  party  on  one  side  and  a  nation 
as  a  corporation  the  real  party  on  the  other.  Individu- 
als who  are  sojourning  in  a  foreign  nation  often  come 
into  direct  conflict  with  the  government  of  the  nation ; 
and  individual  citizens  of  one  nation  frequently  make 
contracts  with  a  foreign  nation.  Thus  the  question 
arises  in  various  ways,  what  rights  have  citizens  of  one 
nation  against  another  nation? 

Some  European  writers  on  public  international  law 
have  already  noticed  the  change  which  is  taking  place 
in  the  views  held  concerning  the  subjects  of  interna- 
tional law  growing  out  of  the  increasing  belief  in  the 
fundamental  rights  of  the  individual — the  rights  of 
man,  as  the  French  call  them.  Thus  in  the  Manual  de 
Droit  International  Public ^  by  Bonfils,  revised  by  Fau- 
chille,  it  is  said: 


The  nations,  considered  as  members  of  the  international 
community,  are  par  excellence  international  persons.  .  .  . 
But  are  they  the  only  international  persons?  Yes,  if  one 
uses  the  expression  * 'international  persons"  as  synonymous 
with  and  equivalent  to  "members  of  the  international  com- 
munity." But  if,  giving  another  meaning  to  this  expression, 
one  designates  by  the  term  "international  persons"  all  the 
beings  whose  juridical  situation  is  regulated  by  the  public 
international  law,  whose  rights  and  duties  are  determined 
and  whose  privileges  are  restricted  by  this  law,  as  subjects 


20    The  American  Philosophy  of  Government 

of  this  branch  of  the  law,  the  nations  are  not  the  only 
international  persons.     (6th  Ed.  1912,  Pars.  154,  157.) 

Speaking  of  the  individual  man  as  one  of  the  subjects 
of  the  public  international  law,  these  authors  say : 

Man,  as  a  member  of  humanity,  has  an  individuality  of 
his  own,  says  Pasquale  Fiore,  a  sphere  of  action  which  may 
include  all  the  regions  of  the  globe,  a  juridical  capacity 
belonging  to  him  by  reason  of  his  mere  existence  and  inde- 
pendent of  that  which  may  be  recognized  as  pertaining  to 
him  as  a  citizen  of  a  nation.  .  .  .  Heffter  classes  among 
the  immediate  subjects  of  international  law  man  considered 
by  himself,  and  the  citizens  of  a  nation  in  their  relations 
with  other  nations.  He  develops  his  thesis  by  examining 
the  primordial  rights  of  man,  of  which  the  idea  of  personal 
liberty  is  the  foundation,  and  which  are  not  to  be  con- 
founded with  political  or  civil  rights.    .    .    . 

Undoubtedly  the  individual  man  is  not  an  international 
person  of  the  same  kind  as  the  nations.  Among  other  differ- 
ences, there  is  one  which  is  very  marked :  From  the  point  of 
view  of  international  law,  the  nation  has  a  simple  character, 
in  that  it  is  and  can  be  subject  only  to  international  law.  The 
individual  man,  however,  has  a  composite  and  mixed  char- 
acter, in  that  he  is,  at  one  and  the  same  time,  subject  to  in- 
ternational law,  and  to  the  particular  law,  public  and  private, 
of  his  own  nation.  These  two  qualities  exercise  on  each  other 
a  reflex  influence.  To  refuse  to  regard  the  individual  man  as 
an  individual  person,  is  to  sacrifice  the  first  to  the  second. 

Has  not  every  man  certain  fundamental  rights  ?  Without 
regard  to  the  nationality  of  the  individual,  are  not  the 
inviolability  of  the  human  person  as  against  the  slave  trade, 
the  security  of  private  property  as  against  piracy,  now 
placed  under  the  protection  of  international  law? 

These  same  writers  have  this  to  say  regarding  the 
rights  of  individuals,  as  citizens  of  a  nation,  against 
another  nation: 


The  American  Philosophy  of  Government    21 

Moreover,  each  individual,  however  isolated,  has  every- 
where, as  a  native  of  a  particular  nation  or  as  under  its 
jurisdiction,  certain  rights  based  on  the  principles  of  inter- 
national law.  The  violation  of  these  rights  is  an  injury,  not 
only  to  the  individual,  but  to  the  nation  of  which  he  is  a 
citizen.  The  subject  of  the  rights  of  the  native  inhabitants 
against  a  foreign  conqueror,  of  the  rights  of  foreigners  to 
enjoy  special  rights  against  uncivilized  natives,  the  subject 
of  naturalization,  and  of  emigration,  fall  within  the  juris- 
diction, in  varying  degrees,  both  of  international  law  and  of 
national  law.  Do  not  disputes  and  conflicts  arise  between 
nations  regarding  emigration  and  naturalization?  Is  not 
the  matter  of  the  extradition  of  criminals,  though  it  so 
profoundly  concerns  the  individuals  charged  with  crime, 
essentially  a  matter  of  public  international  law?  In  these 
cases,  and  in  many  others,  the  citizen  of  a  nation  finds  him- 
self in  contact,  in  relationship  or  in  conflict,  not  with  the 
subjects  of  another  nation,  but  with  the  nation  itself.  It 
is  as  respects  this  nation,  as  an  international  person,  that 
the  relationship  must  be  determined,  or  the  dispute  settled. 
This  relationship  or  this  dispute  is  of  an  international  kind 
and  is  subject  to  be  determined  by  international  law,  just 
as  analogous  relationships  or  disputes  arising  between  a 
nation  and  one  of  its  own  citizens  are  determined  by  the 
national  law. 

It  is  important  to  distinguish,  as  these  writers  do,  be- 
tween the  claims  of  individuals  against  a  foreign  gov- 
ernment based  on  violation  by  the  foreign  government 
of  the  fundamental  rights  of  the  individual  and  the 
claims  of  individuals  against  a  foreign  government 
based  on  violation  by  the  foreign  government  of  the 
rights  which  the  individual  has  as  a  citizen  of  his  own 
nation.  The  Constitution  of  the  United  States  distin- 
guishes between  the  two  classes  of  cases.  The  Supreme 
Court  of  the  United  States  has  jurisdiction  of  all  cases 
involving  the  fundamental  rights  of  the  individual  (the 


22    The  American  Philosophy  of  Government 

Fourteenth  Amendment  having  made  the  United  States 
the  guardian  of  fundamental  rights  against  infringe- 
ment by  the  States),  regardless  of  whether  the  com- 
plainant is  a  citizen  of  the  United  States,  or  of  the  State 
of  which  he  complains,  or  whether  he  is  a  foreigner.  He 
claims  these  rights  simply  as  a  human  being,  and  not 
as  a  citizen  of  the  United  States  or  of  a  State.  In  cases 
not  involving  fundamental  rights,  arising  between  a 
State  and  citizens  of  another  State  or  between  citizens 
of  different  States,  or  between  a  State,  or  the  citizens 
thereof,  and  foreign  states,  citizens,  or  subjects,  the 
Supreme  Court  has  jurisdiction  by  virtue  of  the  citizen- 
ship of  the  parties.  In  this  class  of  cases,  the  individual 
has  rights  only  as  a  citizen  of  a  State. 

The  truth  seems  to  be  that  when  an  individual  claims 
that  his  fundamental  rights  have  been  infringed  by  a 
government,  whether  the  government  is  his  own  or  a 
foreign  one,  he  appeals  neither  to  international  law  nor 
to  national  law,  but  to  a  law  which  is  supreme  over  all 
peoples  and  all  nations,  and  which  grows  out  of  our 
common  human  nature  and  the  nature  of  human  soci- 
ety. This  law  no  people  or  nation  can  ''create" ;  it  can 
only  "recognize"  it.  As  respects  rights  that  are  not 
fundamental — that  is,  which  are  artificial  or  remedial, 
each  individual  is  subject  to  the  rules  of  international 
law  or  of  national  law  according  to  the  nature  of  the 
case  and  according  to  the  citizenship  of  the  parties. 
But  as  respects  his  fundamental  rights,  each  individual 
and  each  government  is  subject  to  the  rules  of  the 
fundamental  and  universal  law  which  is  supreme  over 
both  international  and  national  law,  and  is  pervasive 
throughout  the  whole  society  of  peoples  and  nations 
regardless  of  national  limits.  Though  the  American 
people  have  in  fact  secured  the  fundamental  rights  of 
the  individual  by  our  own  national  law,  through  con- 


The  American  Philosophy  of  Government    23 

stitutional  prohibitions,  we  do  not  regard  these  funda- 
mental rights  as  created  either  by  our  own  national  law 
or  by  international  law,  but  by  a  law  universally  per- 
vasive and  vSupreme  over  both,  which  we  ''recognize," 
and  which  we  consider  that  we  must  recognize  on  pen- 
alty of  reversion  to  barbarism.  One  may  adopt  the 
religious  hypothesis  and  call  this  supreme  universal  law 
the  law  of  God,  or  the  philosophical  hypothesis  and 
call  it  the  law  of  nature,  or  the  juridical  hypothesis  and 
call  it  the  law  of  human  society.  Perhaps  the  simplest 
way  out  of  the  difficulty  of  determining  the  source  of 
this  law  is  to  regard  it  as  a  law  made  by  human  society 
as  an  organized  unitary  community,  and  to  call  it  ''the 
fundamental  law,"  understanding  by  this  that  law 
which  is  supreme  over  all  other  human  law,  whether 
international,  national,  or  municipal,  and  which  deals 
directly  with  the  rights  of  the  individual  man  as  a 
human  being  as  against  all  human  society.  As  Bonfils 
and  Fauchille  say,  slavery  is  abolished  everywhere  be- 
cause society  in  general  feels  that  it  is  in  violation  of 
the  fundamental  rights  of  the  individual  merely  as  a 
human  being  regardless  of  his  citizenship,  and  hence 
destructive  of  all  human  society.  That  there  are  rights 
of  the  individual  which  he  has  merely  as  a  human  being 
and  which  follow  him  throughout  the  world,  is  proved 
by  the  fact  that  each  enlightened  human  being,  if  he 
searches  his  own  conscience,  finds  himself  compelled  so 
to  believe.  The  existence  of  this  law  cannot  be  proved 
by  ordinary  methods  of  proof.  It  must  be  accepted  as 
an  axiomatic  and  self-evident  truth. 

The  supremacy  which  the  American  people  attribute 
to  the  fundamental  law  is  what  may  be  called  a  limited 
supremacy — a  supremacy  within  a  certain  definite 
sphere.  Just  as  the  Constitution  and  laws  and  treaties 
of  the  United  States  are  not  supreme  over  the  Consti- 


24    The  American  Philosophy  of  Government 

tutions  and  laws  of  the  States  for  all  purposes,  but  only 
for  certain  purposes  which  are  in  fact  the  general  pur- 
poses of  the  Union,  so  the  American  people  must  nec- 
essarily believe  that  the  public  international  law  is 
supreme  only  for  the  general  purposes  of  the  whole 
international  society  over  national  constitutions  and 
laws;  and  so  also  they  must  necessarily  believe  the  fun- 
damental law  is  supreme  over  the  public  international 
law  and  all  national  constitutions  and  laws  only  for  the 
still  more  general  purpose  of  securing  those  fundamental 
rights  of  the  individual  which  attach  to  him  merely  as 
a  human  being  and  not  as  a  citizen  of  the  international 
community  or  of  a  particular  nation.  Thus,  according 
to  the  American  view,  there  are  four  kinds  of  supreme 
law,  but  the  supremacy  of  each  is  within  a  certain 
sphere.  There  are  certain  activities  and  relationships 
of  an  individual  which  are  necessary  to  him  as  a  human 
being  equally  with  all  other  human  beings.  Questions 
concerning  his  rights  to  these  activities  and  relation- 
ships, whether  the  rights  are  claimed  against  individu- 
als or  against  the  government,  are  to  be  determined 
according  to  the  principles  of  the  fundamental  law. 
There  are  other  activities  and  relationships  which  each 
individual  claims  and  enjoys  as  a  citizen  of  a  nation 
in  or  against  another  nation  or  its  citizens.  These 
rights  are  determined  by  international  law.  There  are 
still  other  rights  which  the  individual  claims  and  enjoys 
as  a  citizen  of  a  particular  nation  within  the  nation. 
These  rights  are  to  be  determined  by  the  law  of  the 
nation  of  which  he  is  a  citizen.  In  federal  states,  there 
are  rights  which  the  citizen  of  a  state  enjoys  within 
a  state  and  which  are  exclusively  determined  by  the 
law  of  the  state.  At  present  the  old  rule  which  made 
all  governmental  action  of  cities  and  towns  legally 
subordinate  to  the  governmental  action  of  the  state 


The  American  Philosophy  of  Government    25 

applies,  but  there  are  signs  that  there  is  arising  a  con- 
ception of  certain  rights  which  a  citizen  enjoys  as  a 
citizen  of  the  city  or  town.  The  courts  within  the 
United  States  actually  apply  these  principles  as  a  mat- 
ter of  course  in  their  decision  of  cases.  If,  under  the 
facts  of  the  particular  case  and  the  issues  formed  in  the 
case,  the  fundamental  rights  of  the  individual  are  in- 
volved, the  constitutional  prohibitions  for  the  security 
of  fundamental  rights  are  applied.  If,  under  the  facts 
and  issues,  the  rights  of  the  individual  as  a  citizen  of  a 
nation  in  or  against  a  foreign  nation,  or  as  a  citizen 
of  a  foreign  nation  against  the  nation  or  a  State,  are 
involved,  the  case  is  decided  by  international  law;  if 
the  rights  of  the  individual  as  a  citizen  of  a  State  against 
another  State  or  of  citizens  of  one  State  against  citi- 
zens of  another  are  involved,  the  case  is  determined 
by  the  law  of  the  United  States;  if  the  rights  of  the 
individual  as  a  citizen  of  a  State  within  the  State  are 
involved,  the  case  is  determined  by  State  law. 

This  hierarchy  of  laws  springs,  as  has  been  seen,  from 
a  hierarchy  of  communities.  At  the  top  stands  all 
human  society  regarded  as  a  single  corporate  unit, 
which  is  the  theoretical  legislator  of  the  fundamental 
law  under  which  each  individual  has  certain  rights 
against  all  other  individuals  and  all  governments,  simply 
as  a  human  being  belonging  to  this  society  by  reason  of 
his  creation  as  a  human  being.  Next  comes  the  feder- 
alistic  organization  composed  of  all  the  nations  of  the 
world — or  all  the  civilized  nations — regarded  as  a  con- 
sociation of  nations.  This  consociation  is  the  legislator 
of  international  law  or  the  law  of  the  society  of  nations, 
under  which  each  citizen  of  a  nation  has  certain  rights 
against  other  nations  and  their  citizens,  and  rights  in 
the  high  seas  and  other  property  common  to  all  the 
nations.     Next  come  the  particular  nations,  each  of 


26    The  American  Philosophy  of  Government 

which  is  the  legislator  of  its  national  law  under  which 
each  citizen  of  the  nation  has  certain  rights  within  the 
nation.  In  federal  states,  the  nation  is  the  legislator 
of  the  national  law  and  the  State  of  the  State  law,  and 
each  citizen  of  a  State  has  certain  rights  under  State 
law  within  the  State,  different  from  his  rights  as  a 
citizen  of  the  nation. 

The  doctrine  of  fundamental  rights  has,  however,  no 
more  necessary  connection  with  the  idea  of  the  federal 
state  or  nation  than  with  that  of  the  unitary  state  or 
nation.  It  is  equally  necessary  for  the  people  of  a  uni- 
tary nation,  as  for  those  of  a  federal  one,  to  recognize 
the  fundamental  law  and  to  protect  the  fundamental 
rights  of  the  individual  against  all  other  individuals 
and  against  all  governments  by  constitutional  prohi- 
bitions against  certain  forms  of  governmental  action. 
This  is  evidenced  in  the  United  States  by  the  fact  that 
the  people  of  the  States  impose  the  same  prohibitions 
upon  their  State  governments  that  the  people  of  the 
United  States  impose  upon  the  Federal  Government. 
It  is  probably  equally  true  that  the  idea  of  a  federal 
state  or  nation  gives  rise  to  the  idea  of  a  fundamental 
law  of  human  society  as  a  whole  and  of  fundamental 
rights  under  this  law,  and  that  the  idea  of  fundamental 
rights  under  a  fundamental  law  made  by  human  society 
as  a  whole  gives  rise  to  the  idea  of  a  federal  state  or 
nation.  But  it  is  also  true  that  a  people  may  have  an 
idea  of  a  universal  society,  of  fundamental  law  and  of 
fundamental  rights,  without  having  any  experience  of 
a  federal  state  or  nation,  and  even  though  they  believe 
in  the  unitary  rather  than  the  federal  form  of  organiza- 
tion. France,  with  its  idea  of  the  rights  of  man,  and 
Great  Britain,  with  its  idea  of  fundamental  rights  de- 
rived from  the  constitutional  prohibitions  upon  certain 
forms  of  governmental  action  found  by  experience  to  be 


The  American  Philosophy  of  Government    27 

dangerous  or  destructive  to  these  rights,  show  that  the 
conception  of  a  fundamental  law  and  fundamental 
rights  has  no  necessary  connection  with  the  federal 
form  of  government.  The  constitutional  prohibitions 
adopted  by  the  people  of  the  United  States  in  the  Con- 
stitutional Bill  of  Rights  are  in  fact  collated  from  Mag- 
na Charta,  from  the  English  Petition  of  Right,  from  the 
English  Habeas  Corpus  Act,  and  from  the  English  Bill 
of  Rights,  as  these  were  developed  in  the  Massachusetts 
Body  of  Liberties,  in  the  Virginia  Declaration  of  Rights, 
and  in  the  original  Constitutions  of  the  States  of  the 
American  Union. 
/  The  real  difference  between  the  United  States  and 

/other  nations  is  thus  not  so  much  one  of  the  philosophy 
of  government,  as  of  the  system  which  we  apply  to 
make  the  fundamental  law  and  the  fundamental  rights 
of  the  individual  practical  and  effective.  No  other  na- 
tion imposes  constitutional  prohibitions  for  the  protec- 
tion of  these  rights  upon  all  its  governments  and  all 
their  branches  and  makes  these  prohibitions  the  most 
fundamental  part  of  the  supreme  law  of  the  land  so  as 
to  make  the  courts  the  guardians  of  these  fundamental 

\  rights.  Though  we  may  believe  that  this  system  is  not 
perfect,  it  has  the  tremendous  advantage  of  keeping 
the  conception  of  fundamental  law  and  fundamental 
rights  alive  in  the  minds  and  consciences  of  the  people. 
The  knowledge  that  the  most  insignificant  individual 
may  call  to  his  aid  the  protection  of  the  courts  against 
the  acts  of  his  State  legislature  and  even  against  the 
acts  of  the  national  Congress  if  these  acts  violate  these 
fundamental  constitutional  prohibitions,  dignifies  the 
individual  and  keeps  before  the  mind  of  all  the  people 
the  moral  worth  of  each  human  being  simply  as  a 
human  being,  a  creation  of  God,  and  a  member  of 
human  society.     It  dignifies  government  by  enabling 


28    The  American  Philosophy  of  Government 

the  people  to  regard  it  in  its  proper  aspect  as  an  agency 
of  the  people  having  for  the  sole  object  of  its  institution 
the  welfare  and  development  of  the  individual.  It  com- 
pels the  public  official  to  exercise  his  power  by  judgment, 
since  he  is  obliged  in  each  case  to  decide  before  he  acts 
whether  he  is  acting  within  the  jurisdiction  assigned  to 
him  as  an  agent  of  the  people  to  secure  fundamental 
rights.  There  is  no  particular  virtue  in  written  con- 
stitutions in  so  far  as  they  merely  determine  the  frame 
of  organization  of  the  government  and  the  distribution 
of  functions  between  the  different  branches  of  the  gov- 
ernment and  the  different  corporate  members  of  the 
nation.  Their  virtue  lies  in  the  possibility  of  establish- 
ing, by  means  of  them,  constitutional  prohibitions  for 
the  protection  of  the  fundamental  rights  of  the  indi- 
vidual, and  of  making  these  prohibitions  the  funda- 
mental part  of  the  supreme  law  of  the  land.  The  limi- 
tations of  power  as  between  the  different  branches  of 
government  and  the  different  corporate  members  of 
the  nation  may  be  established  under  unwritten  con- 
stitutions, but  the  limitations  of  the  power  of  a  govern- 
ment as  between  itself  and  the  individual  can  only  be 
effectively  established  by  a  written  constitution  enacted 
by  the  people,  in  which  are  inserted  constitutional  pro- 
hibitions for  the  protection  of  the  fundamental  rights, 
which  are  by  the  people  declared  to  be  the  fundamental 
part  of  the  supreme  law  of  the  land,  and  which  are  in- 
terpreted and  applied  by  the  courts,  subject  perhaps  to 
revision,  in  extraordinary  cases,  by  an  extraordinary 
tribunal  established  for  the  purpose. 

It  is  because  the  people  of  the  United  States  be- 
lieve that  they  have  a  peculiar  system  of  govern- 
ment which  is  essential,  not  only  to  their  own  liberty 
and  their  own  society,  but  to  individual  liberty  and 
human  society  everywhere,  and  which  they  hold    in 


The  American  Philosophy  of  Government    29 

trust  for  civilization,  that  they  feel  it  their  duty  to 
protect  their  philosophy  and  their  governmental  sys- 
tem from  such  contact  with  other  systems  as  might 
endanger  its  existence.     This  was  the  original  basis  of  f< 

the  Monroe  Doctrine,  and  still  continues  to  be  its  true 
basis.  The  belief  in  the  fundamental  rights  of  the  indi- 
vidual which  we  hold,  destroys  all  motive  for  conquest, 
since  the  only  effect  of  conquest  by  us  is  to  place  upon 
us  the  difficult  task  of  securing  the  fundamental  rights 
of  the  individual  in  the  countries  annexed.  We  welcome 
the  independence  of  nations  which  accept  our  philoso- 
phy and  which  honestly  recognize  the  fundamental  law 
and  do  their  utmost  to  preserve  fundamental  rights. 
The  rights  of  intervention  in  the  affairs  of  the  South 
American  Republics,  for  the  purpose  of  controlling  them 
in  the  interest  of  Europe,  was  claimed  in  1823  by  the 
allied  powers  of  Continental  Europe  as  a  logical  result 
of  their  political  philosophy  and  system.  President 
Monroe  declared  that  "the  political  system  of  the  allied 
Powers  is  essentially  different  in  this  respect  from  that 
of  America"  and  that  "this  difference  proceeds  from 
that  which  exists  in  their  respective  governments." 
Asserting  that  "to  the  defense  of  our  own  system, 
which  has  been  achieved  by  the  loss  of  so  much  blood 
and  treasure,  and  matured  by  the  wisdom  of  their  most 
enlightened  citizens,  this  whole  nation  is  devoted,"  he 
concluded  that  we  owed  it  "to  candor,  and  to  the  ami- 
cable relations  existing  between  the  United  States  and 
those  Powers,  to  declare  that  we  should  consider  any  at- 
tempt on  their  part  to  extend  their  system  to  any  part  of 
this  hemisphere  as  dangerous  to  our  peace  and  safety." 
The  whole  effect  of  the  Monroe  Doctrine  was  that 
the  American  people  were  determined  that  their  phil- 
osophy and  their  system  should  have  every  chance  of 
surviving  in  the  competition  of  philosophies  and  systems 


30     The  American  Philosophy  of  Government 

to  which  it  could  reasonably  be  thought  to  be  entitled. 
The  philosophy  of  government  then  prevailing  in  Con- 
tinental Europe  denied  the  fundamental  rights  of  the 
individual  and  asserted  that  all  rights  of  men  were 
created  by  the  nation.  The  republics  of  Central  and 
South  America  having  established  themselves  and  hav- 
ing nominally  accepted  the  American  philosophy  of 
government  and  to  some  extent  the  American  system, 
.the  United  States  asserted  that  the  people  of  these  na- 
tions should  be  free  to  develop  themselves,  hoping  and 
believing  that  in  the  course  of  time  they  would  fully 
accept  the  American  philosophy  of  government  and  ap- 
ply it  effectively  in  their  national  affairs.  The  Monroe 
Doctrine  is  thus  a  doctrine  of  freedom.  It  had  its  ori- 
gin in  a  conflict  of  philosophies.  It  had  for  its  purpose 
the  protection  of  the  Central  and  South  American 
Republics  in  developing  and  working  out  a  philosophy 
and  system  which  they  had  freely  chosen.  The  Monroe 
Doctrine  will  die  when  nations  of  the  world  accept  the 
belief  in  the  fundamental  rights  of  the  individual  and 
make  these  rights  practical  and  effective;  for  by  the 
acceptance  of  this  belief  and  by  the  adoption  of  a 
practical  system  in  accordance  with  this  belief,  all  mo- 
tive for  conquest  ceases,  and  nations  will  refrain  from 
interfering  in  the  internal  affairs  of  other  nations,  since 
intervention  will  carry  with  it  the  heavy  responsibility 
of  securing  the  fundamental  rights  of  the  people  of  the 
invaded  country,  without  possibility  of  great  gains,  and 
with  only  an  uncertain  compensation. 

The  fact  that  the  American  people  hold  this  philoso- 
phy of  government  in  which  the  securing  of  the  funda- 
mental rights  of  the  individual  is  regarded  as  the  object 
for  which  all  government  is  instituted  among  men,  pro- 
foundly affects  the  attitude  which  American  statesmen 
must  take  in  respect  to  every  question  growing  out  of 


The  American  Philosophy  of  Government    31 

our  foreign  as  well  as  our  domestic  relations.  The 
officials  of  our  Department  of  Foreign  Affairs — which 
for  historical  reasons  we  call  the  Department  of  State — 
as  well  as  our  diplomatic  officials,  accustomed  to  regard 
the  fundamental  rights  of  the  individual  as  the  matter 
of  prime  importance,  inevitably  and  properly  apply  our 
own  constitutional  tests  to  all  proposals  for  joint  action 
between  the  United  States  and  any  other  nation,  in 
the  solution  of  questions  arising  between  this  nation 
and  any  other.  To  them  the  old  conception  of  sover- 
eignty, as  a  power  of  each  nation  to  do  what  it  wills,  is 
impossible,  since  our  philosophy  compels  us  to  hold  that 
all  national  action  is  limited  by  the  fundamental  law. 

The  American  philosophy  and  system  of  government 
— or  more  properly,  the  failure  of  other  nations  to 
accept  our  philosophy  and  system — particularly  stands 
in  the  way  of  international  arbitration  and  the  judicial 
settlement  of  international  disputes.  With  the  drawing 
together  of  the  whole  world  by  the  increased  facili- 
ties for  travel  and  communication,  disputes  tend  more 
and  more  to  be  between  an  individual  and  a  government 
or  some  branch  of  it.  In  every  case  of  this  kind  there 
is  a  possibility  that  the  question  of  the  fundamental 
rights  of  the  individual  may  be  involved,  so  that  in  a 
similar  case  arising  in  the  United  States,  the  constitu- 
tional prohibitions  for  the  protection  of  fundamental 
rights  would  be  applied  by  the  courts  and  the  govern- 
mental action  in  question  might  be  nullified.  In  this 
class  of  cases,  when  the  United  States  is  asked  to  submit 
to  arbitration  or  judicial  settlement,  a  grave  difficulty 
arises.  Inasmuch  as  the  peoples  of  foreign  nations  do 
not  impose  constitutional  prohibitions  on  their  govern- 
ments for  the  protection  of  fundamental  rights  and  do 
not  make  these  prohibitions  the  fundamental  law  of  the 
land,  the  courts  and  the  lawyers  of  European  countries 


32    The  American  Philosophy  of  Government 

are  not  accustomed  to  issues  being  raised  concerning 
the  validity  of  acts  of  government  as  respects  funda- 
mental rights.  As  it  is  necessary  that  European  jurists 
should  be  in  the  majority  on  most  arbitral  or  judicial 
tribunals  in  international  cases,  it  follows  that  these 
tribunals  are  likely  to  treat  some  governmental  acts  as 
valid  which  we  would  hold  invalid  and  nullify  as  in- 
fringing fundamental  rights.  Thus  the  United  States 
must,  for  the  protection  and  preservation  of  its  own 
philosophy  and  system,  refrain  from  submitting  to  the 
decision  of  such  a  tribunal  any  case  which,  if  arising 
within  the  United  States,  would  be  considered  as  in- 
volving the  fundamental  rights  of  the  individual  under 
our  constitutional  prohibitions.  So  long  as  this  differ- 
ence in  philosophies  and  systems  continues,  the  only 
hope  for  the  extension  of  international  arbitration  or 
judicial  settlement  would  seem  to  be  in  making  all 
action  of  international  arbitral  or  judicial  tribunals 
advisory  to  the  nations  which  are  the  parties.  This 
would  permit  these  nations  themselves  to  review  the 
decision  from  every  standpoint  and  to  protect  their  own 
philosophies  and  systems.  Acceptance  of  a  decision 
by  the  parties  would  greatly  increase  its  weight  as  a 
precedent  for  other  nations,  and  would  insure  the  exe- 
cution of  the  decision  by  the  defeated  party. 

The  American  philosophy  of  government  also  stands 
in  the  way  of  the  codification  of  international  law.  No 
American  can,  consistently  with  his  own  fundamental 
beliefs,  subscribe  to  a  code  of  international  law  which 
does  not  contain  constitutional  prohibitions  forbidding 
to  all  peoples,  nations,  and  governments  certain  forms 
of  action  dangerous  to  or  destructive  of  fundamental 
rights,  and  which  does  not  make  these  constitutional 
prohibitions  fundamental  and  supreme  over  all  inter- 
national and  national  law. 


The  American  Philosophy  of  Government    33 

The  United  States  is  therefore  at  the  present  time 
in  one  sense  a  disturbing  factor  in  the  councils  of  the 
nations.  Its  disturbance  is  not  of  a  physical  kind,  but 
of  an  intellectual  and  spiritual  kind.  It  brings  to  the 
discussion  of  all  international  questions  ideas  of  uni- 
versal law,  of  fundamental  rights  of  the  individual  as  a 
created  human  being,  of  practical  protection  of  these 
rights  through  constitutional  prohibitions  on  all  gov- 
ernments, based  on  popular  and  national  recognition 
of  fundamental  law.  To  some  these  ideas  may  seem  to 
be  destructive,  but  they  are  really  in  the  highest  sense 
conservative  and  constructive;  for  the  recognition  of 
the  rights  of  man  is  in  no  sense  inconsistent  with  the 
recognition  of  the  rights  of  nations.  The  American 
philosophy  equally  recognizes  the  rights  of  man  and 
the  rights  of  nations,  holding  that  society  can  exist 
only  through  local  organization,  and  that  nations  act- 
ing independently,  but  in  concert,  are  the  most  appro- 
priate means  of  securing  the  individual  in  his  funda- 
mental rights  and  in  aiding  him  to  extend  his  powers 
over  nature. 

The  philosophy  of  the  United  States  makes  for  peace. 
The  wars  which  the  United  States  has  fought  have  all 
been  for  the  purpose  of  protecting  the  fundamental 
rights  of  the  individual  and  maintaining  the  nation  as 
the  guardian  of  these  rights.  There  can  be  no  true 
peace  except  where  the  individual  has  his  fundamental 
rights,  and  where  these  rights  are  secured  to  him  by 
the  power  of  a  nation.  It  is  unlikely  that  the  United 
States  will  ever  apply  physical  force  externally  in  the 
future  except  for  the  same  purposes  for  which  it  has 
waged  wars  in  the  past.  Such  protective  and  defen- 
sive action  its  philosophy  permits  and  in  some  cases 
demands. 


THE  DECLARATION  OF  INDEPENDENCE 

AS  THE  FUNDAMENTAL  CONSTITUTION 

OF  THE  UNITED  STATES 


35 


THE  DECLARATION  OF  INDEPENDENCE 

AS  THE  FUNDAMENTAL  CONSTITUTION 

OF  THE  UNITED  STATES 

Delivered  before  the  Section  for  the  Study  of  the  Government  of 
Dependencies,  of  the  American  Political  Science  Association,  at  the 
Meeting  held  at  Providence,  December  29,  1906. 

YOU  have  heard  ably  discussed  certain  questions 
which  arise  out  of  the  relationship  between  the 
American  Union  and  the  annexed  Insular  regions, 
viewed  in  its  sociological  and  economic  aspect.  I  now 
ask  your  attention  to  a  question  of  immediate  interest 
and  importance  growing  out  of  this  relationship  viewed 
in  its  political,  that  is  to  say,  its  legal  aspect.  This 
question,  which  the  Committee  on  Arrangements  has 
called  "The  Question  of  Terminology,"  is:  What  are 
the  correct  terms  to  use  in  describing  the  political  and 
legal  relationship  between  the  American  Union  and  its 
distant  annexed  regions,  assuming  that  this  relation- 
ship is  to  be  permanent  and  is  to  be  on  terms  which  are 
just  to  all  parties?     * 

More  specifically,  the  question  which  I  shall  discuss 
will  be,  whether  we;  as  Americans,  ought,  according  to 
American  principles,  to  use,  in  our  political  and  legal 
language,  the  terms  ''colony,"  ''dependence,"  and  "em- 
pire," or  whether  we  ought,  according  to  those  princi- 
ples, to  substitute  for 'the  term  "colony,"  the  term  "free 
state,"  for  "clependence,"  "just  connection,"  and  for 
"empire,"  "union," 

It  is  needless  to  say  that  I  shall  accept  the  decisions 

37 


38    The  American  Philosophy  of  Government 

of  the  Supreme  Court  of  the  United  States  as  final  in 
regard  to  all  the  matters  adjudicated  in  them.  But 
the  Supreme  Court  has  jurisdiction  only  for  the  purpose 
of  determining  the  rights  of  individuals.  The  political 
relations  between  the  Union  and  the  Insular  regions,  it 
determines  only  so  far  as  may  be  necessary  to  ascertain 
individual  rights.  Its  present  doctrine — that  the 
American  Union  has  power  over  the  Insular  regions 
subject  to  "fundamental  principles  formulated  in  the 
Constitution,"  or  subject  to  ''the  applicable  provisions 
of  the  Constitution,"  protects  the  civil  rights  of  indi- 
viduals, but  under  it  the  power  of  the  Union  for  political 
purposes  remains  absolute.  The  proposition  which  I 
shall  offer  for  your  judgment,  will,  I  believe,  not  only 
not  be  in  conflict  with  the  propositions  laid  down  by 
the  Supreme  Court,  but  will  give  a  reason  why  they  are 
right.  It  will,  too,  I  believe,  give  a  reasonable  basis  for 
our  holding  that  the  power  of  the  American  Union  over 
the  Insular  regions,  while  ample  for  the  maintenance 
of  a  just  and  proper  permanent  relationship  with  them 
under  our  control,  is  not  absolute  even  as  respects  their 
political  rights. 

I  have  said  that  I  shall  discuss  this  question  upon 
American  principles.  I  shall  not  base  myself  on  the 
Constitution  of  the  United  States,  though  I  shall  try 
to  show  the  relation  of  that  document  to  the  question 
as  I  understand  it.  I  shall  assume  it  to  be  settled  by 
the  decisions  of  the  Supreme  Court, — as  it  seems  clearly 
to  be, — that  with  the  exception  of  the  "Territory" 
clause  of  that  instrument,  it  is,  and  of  right  ought  to 
be,  the  Constitution  of  the  thirteen  original  States  of 
the  American  Union  and  of  the  other  States  which 
they  have  admitted  into  their  Union,  and  of  no  other 
States  or  communities;  and  that  therefore  it  does  not 
extend  of  its  own  force  outside  the  American  Union  in 


The  Declaration  of  Independence  39 

any  constitutional  or  legal  sense,  but  only  in  a  meta- 
phorical sense — this  being  as  I  understand  it,  the  mean- 
ing of  the  Court  when  they  hold,  as  they  do,  that, 
though  the  "Territory  clause"  is  of  present  and  uni- 
versal significance  as  respects  all  the  regions  annexed  to 
the  Union,  yet,  with  this  exception,  only  "the  funda- 
mental principles  formulated  in  the  Constitution"  are 
in  force  in  the  annexed  regions.  "Extensions,"  so- 
called,  of  the  Constitution  by  Act  of  Congress,  are  of 
course  mere  Acts  of  Congress,  and  whether  such  meta- 
phorical "extensions"  are  permanent  will  depend  upon 
the  terms  and  conditions  of  the  "extension." 

But  though  I  shall  not  base  myself  on  the  Constitu- 
tion of  the  United  States,  I  shall  nevertheless  base  my- 
self on  a  great  American  Document,  which  preceded  the 
Constitution  as  a  statement  of  American  principles, 
and  which  is  so  far  from  being  inconsistent  with  it  that 
the  Democratic  party,  in  its  platform  of  1900,  called 
it  "the  Spirit  of  the  Constitution" — I  refer  to  the  Dec- 
laration of  Independence.  It  is  the  American  principles 
set  forth  in  that  document  which  I  shall  try  to  discover. 
If  I  shall  be  adjudged  to  have  rightly  interpreted  that 
instrument,  it  will  follow  that  we  ought  to  substitute, 
in  our  political  and  legal  language,  for  the  term  "col- 
ony," the  term  "free  state,"  for  "dependence,"  "just 
connection,"  and  for  "empire,"  "union."  In  making 
such  substitution,  however,  it  will  be  necessary  to  give 
to  the  terms  "free  state"  and  "union,"  a  scientific 
meaning  which  will  differ  from  that  which  they  now 
have  in  the  popular  mind,  but  which  will,  I  believe,  be 
the  same  as  was  given  to  these  terms  by  the  Revolu- 
tionary statesmen. 

I  shall  not  allow  myself  to  be  embarrassed  by  the  fact 
that  in  my  first  published  writing  I  used  the  terms 
"colony,"  "dependence"  and  "empire";  for  at  the  same 


40    The  American  Philosophy  of  Government 

time  that  I  used  these  terms,  I  based  myself  on  prin- 
ciples which  were  those  of  free  statehood,  just  connec- 
tion and  union,  to  which  I  adhere  to  this  day. 

Taking  the  Declaration  of  Independence,  therefore, 
as  the  exposition  of  the  fundamental  principles  on  which 
all  American  political  theory  is  based,  and  to  which  all 
American  policy  must  conform,  let  me  state  briefly  the 
general  meaning  and  purpose  of  this  instrument,  as  I 
understand  it. 

As  a  result  of  the  discussion  for  twelve  years  pre- 
ceding the  Declaration,  the  doctrine  of  the  extension  of 
the  British  Constitution  to  the  American  Colonies, 
which  from  their  situation,  could  never  be  represented 
on  equal  terms  in  Parliament,  was  found  to  be  useless 
for  the  protection  of  American  rights,  political  or  civil ; 
and  the  doctrine  that  their  rights  were  dependent  on 
the  Colonial  Charters  was  found  to  be  inadequate,  for 
these  Charters,  while  protecting  the  civil  rights  of  the 
Americans  to  some  extent,  proceeded  on  the  theory  that 
they  held  all  their  political  rights  at  the  will  or  whim  of 
Great  Britain.  The  Americans  felt  and  knew  that  they 
were  entitled  to  political,  as  well  as  civil  rights,  and 
they  all  firmly  believed  that  each  so-called  "colony" 
was  a  free  state  and  subject  to  no  external  control 
beyond  what  was  necessary  to  preserve  their  relation- 
ship with  Great  Britain  on  just  terms  to  all  the  parties. 
This  doctrine  of  free  statehood  as  a  universal  right  is, 
as  I  understand  it,  the  central  idea  of  the  Declaration. 

Assuming  this  to  be  the  central  idea,  let  us  see  how 
this  idea  is  reached ;  and  for  that  purpose,  let  us  notice 
the  exact  language  of  the  Declaration.  The  first  para- 
graph reads: 

When  in  the  course  of  human  events,  it  becomes  necessary 
for  one  people  to  dissolve  the  political  bands  which  have  con- 


The  Declaration  of  Independence  41 

nected  them  with  another,  and  to  assume,  among  the  powers 
of  the  earth,  the  separate  and  equal  station  to  which  the  laws 
of  Nature  and  of  Nature's  God  entitle  them,  a  decent  respect 
to  the  opinions  of  mankind  requires  that  they  should  declare 
the  causes  which  impel  them  to  the  separation. 

The  * 'causes  of  separation"  are  prefaced  by  a  number 
of  propositions  determining  the  nature  of  the  "political 
bands"  by  which  one  people  may  be  "connected  with" 
another.  These  propositions  are  all  rules  of  human 
conduct,  and  are  therefore  principles  of  law,  though 
they  are  called  "self-evident  truths."  This  part  of  the 
Declaration  reads : 

We  hold  these  truths  to  be  self-evident :  That  all  men  are 
created  equal;  that  they  are  endowed  by  their  Creator  with 
certain  unalienable  rights,  that  among  these  are  life,  liberty, 
and  the  pursuit  of  happiness;  that  to  secure  these  rights, 
governments  are  instituted  among  men,  deriving  their  just 
powers  from  the  consent  of  the  governed;  that  whenever  any 
form  of  government  becomes  destructive  of  these  ends,  it  is 
the  right  of  the  people  to  alter  or  to  abolish  it,  and  to  institute 
new  government,  laying  its  foundation  on  such  principles  and 
organizing  its  powers  in  such  form  as  to  them  shall  seem  most 
likely  to  effect  their  safety  and  happiness." 

The  conception  of  the  universal  right  of  free  state- 
hood is  reached,  in  the  Declaration,  through  a  series  of 
three  propositions,  each  stated  to  be  self-evident,  and 
yet  all  forming  a  sequence.  The  basal  proposition  is, 
that  "all  men  are  created  equal."  Rufus  Choate  and 
John  James  Ingalls  have  declared  this  proposition  and 
the  succeeding  one  that  "all  men  are  endowed  by  their 
Creator  with  certain  unalienable  rights,  that  among 
these  are  life,  liberty,  and  the  pursuit  of  happiness," 
to  be  "glittering  generalities."  Abraham  Lincoln,  on 
the  other  hand,  in  his  speech  at  Gettysburg,  at  the  most 


42    The  American  Philosophy  of  Government 

solemn  and  stirring  moment  in  the  country's  history, 
declared  that  the  proposition  that  all  men  are  created 
equal  was  the  foundation-idea  of  the  nation,  to  which  it 
was  dedicated  by  the  Fathers. 

There  are,  it  is  to  be  believed,  many  who  will  be  ready 
and  willing  to  accept  as  true  the  statement,  which  every 
student  of  political  history  must  admit  to  be  true,  that 
the  philosophy  of  the  American  Revolution  was  a  re- 
ligious philosophy.  It  is  indeed  perhaps  not  too  much 
to  say  that  the  period  of  the  American  Revolution 
was  the  period  in  which  both  political  and  religious 
thinking  reached  the  highest  point,  and  that  there  is 
no  question  of  government  which  has  since  arisen 
which  was  not  either  solved  by  the  Revolutionary 
statesmen  or  put  in  the  process  of  solution. 

The  political  philosophy  of  the  American  Revolution 
has  long  been  confused  with  that  of  the  French  Revo- 
lution. As  matter  of  fact,  they  stand  at  opposite 
poles.  Our  philosophy  was  religious,  the  French  non- 
religious. 

^Frnrn  thp  pa rlip^t  times,  the  poHtical  philosophv  of 
JJTPjipnpIp  nf  AmpnVa  was  Hirpctly  con tientgd^ with  the 
religious  RnH  political  phi1osophy_oL_the_Refoiination . 
"The  essence  of  that  philosophy  was  that  man  was 
essentially  a  spiritual  being;  that  each  man  was  the 
direct  and  immediate  creature  of  a  personal  God,  who 
was  the  First  Cause ;  that  each  man  as  such  a  spiritual 
creature  was  in  direct  and  immediate  relationship  with 
God;  as  his  Creator;  that  between  men,  as  spiritual 
creatures,  there  was  no  possibility  of  comparison  by  the 
human  mind,  the  divine  spark  which  is  the  soul  being 
an  essence  incapable  of  measurement  and  containing 
possibilities  of  growth,  and  perhaps  of  deterioration, 
known  only  to  God;  that  therefore , all  men,  as  essfti^-_ 
tially  spiritual  beings,  were  equal  in  the  sight  of  all 


The  Declaration  of  Independence  43 

other  men.^  Luther  and  Calvin  narrowed  this  philo- 
''isOphy^By  assuming  that  this  spiritual  nature  and  this 
equality  were  properties  only  of  professing  Christians, 
but  Fox,  followed  by  Penn,  enlarged  and  universalized 
it  by  treating  the  Christian  doctrine  as  declaratory  of 
a  universal  truth.  Penn's  doctrine  of  the  universal 
"inner  light,"  which  was  in  every  man  from  the  begin- 
ning of  the  world  and  will  be  to  the  end,  and  which  is 
Christ, — according  to  which  doctrine  every  human 
being  who  has  ever  been,  who  is,  or  who  is  to  be,  is 
inevitably  by  virtue  of  his  humanity,  a  spiritual  being, 
the  creature  of  God,  and,  as  directly  and  immediately 
related  spiritually  to  Him,  the  equal  of  every  other 
man, — marked  the  completion  of  the  Reformation. 

According  to  this  theory,  the  life  of  animals  who, 
being  created  unequal,  are  from  birth  to  death  en- 
gaged in  a*  struggle  for  existence  in  which  the  fittest  sur- 
vives, is  eternally  and  universally  differentiated  by  a 
wide  and  deep  chasm  from  the  life  of  men,  who,  being 
created  equal,  are  engaged  in  a  struggle  against  the 
deteriorating  forces  of  the  universe  in  which  each  helps 
each  and  all,  and  in  which  each  and  all  labor  that  each 
and  all  may  not  only  live,  but  may  live  more  and  more 
abundantly. 

According  to  this  theory,  also,  the  glaring  inequali- 
ties of  physical  strength,  of  intellectual  power  and  cun- 
ning, and  of  material  wealth,  which  are,  on  a  superficial 
view,  the  determining  facts  of  all  social  and  political  life, 
are  merely  unequal  distributions  of  the  common  wealth 
and  each  person  is  considered  to  hold  and  use  his 
strengths  his  talents  and  his  property  for  the  develop- 
ment of  each  and  all  as  beings  essentially  equal. 

According  to  this  theory,  also,  there  is  for  mankind 
no  "state  of  nature"  in  which  men  are  equally  inde- 
pendent and  equally  disregardful  of  others,  which  by 


44    The  American  Philosophy  of  Government 

agreement  or  consent  becomes  a  "state  of  society"  in 
which  men  are  equally  free  and  equally  regardful  of 
others,  but  the  "state  of  nature"  and  the  "state  of 
society"  are  one  and  the  same  thing.  Every  man  is 
regarded  as  created  in  a  state  of  society  and  brother- 
hood with  all  other  men,  and  the  "state  of  nature," — 
man's  natural  estate  and  condition, — is  the  "state  of 
society." 

Were  anyone  asked  to  sum  up  in  the  most  concise 
form  possible  the  ultimate  doctrine  of  the  Reformation, 
he  could,  perhaps,  epitomize  it  no  more  correctly  than 
by  the  single  proposition,  "All  men  are  created  equal." 
This  doctrine  of  human  eaualitv  arising  from  common 
creation,  growing  out  of  Lutheranism  and  Calvinism 
through  the  intellectual  influence  of  Penn,  and  the 
broadening  efect  of  life  in  this  new  and  fruitful  land, 
underlay  all  American  life  and  institutions?"       ~ " 

One  of  the  results  of  this  final  theory  of  the  Reforma- 
tion was  the  conception,  by  certain  devout  men  and 
great  scholars,  of  a  "law  of  nature  and  of  nations," 
based  on  revelation  and  reason,  which  was  universally 
prevalent,  and  which  governed  the  relations  oi  men,  of 
communities,  of  states  and  of  nations.  Out  of  this 
there  had  then  emerged  the  conception  which  has  now 
become  common  unSerHhe  name  of  International  Law, 
which  treats  of  the  temporary  relations  between  inde- 
pendent states.  But  the  conception  of  the  "law  of  na- 
ture and  of  nations"  was,  as  has  been  said,  vastly  wider 
than  this.  It  was  a  universal  law  governing  all  possible 
forms  of  human  relationship,  and  hence  all  possible  re- 
lations between  communities  and  states,  and  therefore 
determining  the  rights  of  communities  and  states 
which  were  in  permanent  relationship  With  one  another. 
Based  on  the  theory  of  the  equality  of  all  men  by  rea- 
son of  their  common  creation,  it  recognized  just  public 


The  Declaration  of  Independence  45 

sentiment  as  the  ultimate  force  in  the  world  for  effectu- 
ating this  equality,  and  considered  free  statehood  as 
the  prime  and  universal  requisite  for  securing  that  free 
development  and  operation  of  public  sentiment  which 
was  necessary  in  order  that  public  sentiment  might  be 
just. 

While  this  philosphy  of  the  Reformation  was  thus  ex- 
tending itself  in  America,  both  among  the  Govern- 
ments and  the  people,  and  in  Europe  among  the  people, 
the  Governments  of  Europe,  though  not  recognizing  the 
existence  of  any  ''law  of  nature  and  of  nations"  what- 
ever, were  nevertheless  acting  on  the  basis  that  such  a 
law  did  exist  and  was  based  on  the  proposition  that  all 
men  are  created  unequal,  or  that  some  are  created 
equal  and  some  unequal.  The  alleged  superior  was 
sometimes  a  private  citizen,  sometimes  a  noble,  some- 
times a  monarch,  sometimes  a  government,  sometimes 
a  state,  sometimes  a  nation.  The  inferior  was  said  to 
be  "dependent"  upon  the  superior — that  is,  related 
to  him  directly  and  without  any  connecting  justiciary 
medium,  so  that  the  will  of  the  superior  controlled 
the  will  and  action  of  the  inferior. 

We  discover,  then,  from  an  examination  of  the 
circumstances  surrounding  the  Declaration  of  Inde- 
pendence, a  most  interesting  situation.  A  young  na- 
tion, separated  by  a  wide  ocean  from  Europe,  settled 
by  men  who  were. full  of  the  spirit  of  the  Reformation, 
deeply  convinced,  after  a  national  life  of  one  hundred 
and  fifty  years,  that  these  principles  were  of  universal 
application,  were* suddenly  met  by  a  denial  of  these  prin- 
ciples from  the  European  State  with  which  they  were 
most  intimately  related.  This  denial  was  accompanied 
by  acts  of  that  State  which  amounted  to  a  prohibi- 
tion of  the  application  of  these  principles  in  Ameri- 
can political  Hfe.    This  Eurbpean  State  was  indeed  the 


46    The  AmericaxL  Philosophy  of  Government 

mother-country  of  America,  and  the  Americans  were 
bound  to  their  English  brethren  by  every  tie  of  interest 
and  affection.  The  Americans  were  only  radical 
Englishmen,  who  gloried  in  the  fact  that  England  of 
all  the  countries  of  Europe  had  gone  farthest  in  ac- 
cepting the  principles  of  the  Reformation,  and  who 
had  emigrated  reluctantly  from  England,  because  they 
were  out  of  harmony  with  the  tendency  of  English 
political  life  to  compromise  between  the  principles  of 
Medisevalism  and  the  principles  of  the  Reformation. 
The  Declaratory  Act  of  1766  brought  clearly  into  com- 
parison the  political  system  of  America,  opposed  to  the 
political  system  of  Europe.  It  was  inevitable  from  that 
moment  that  the  American  System,  based  on  the 
principles  of  the  Reformation  in  their  broadest  sense 
and  their  most  universal  application  and  briefly  summed 
up  in  the  proposition  that  ''all  men  are  created  equal," 
must  conquer,  or  be  conquered  by,  the  European  Sys- 
tem, based  either  on  the  principles  of  Mediaevalism, 
summed  up  in  the  proposition  that  ''all  men  are  created 
unequal,"  or  on  a'  compromise  between  the  principles 
of  Mediaevalism  and  the  Reformation,  summed  up  in 
the  proposition  that  "some  men  are  created  equal, 
and  some  unequal." 

The  most  reasonable  interpretation,  as  it  seems  to 
me,  of  the  statement  that  '^alljnea-Bxe- created  equal  '* 
js,  as  I  havesaid,  that  it  is,  and  was  intended  to  be,  an 
epitome  of  the  doctrme  of  the  Reformation^  There  will 
be  those  who  will  scoff  at  the  suggestion  that  a  political 
body  Hke  the  Continental  Congress  should  have  based 
the  whole  political  life  of  the  nation  upon  a  rehgious 
doctrine.  But  it  is  to  remembered  that  ±he  Conti- 
nental Congress  was  not  an  ordinary  political  body. 
It_saa.lhe_mostphilosophic  and  at  the  same  time  tfiF 
most  religiouTanJlhe  mosftntellectually  imtrammeled 


The  Declaration  of  Independence  47 

,^  lies  and  measures.  Meeting  under  circumstances  where 
weakness  of  resources  compelled  the  most  absolute  just- 
ness in  their  reasons  for  taking  up  arms,  they  must 
have  discussed  their  positions  from  the  standpoint  of 
morality  and  reHgion.  John  Adams  tells  that  one  of 
the  main  points  discussed  at  the  opening  of  the  Conti- 
nental Congress,  when  they  were  framing  the  ultimatum 
which  finally  took  the  form  of  the  Fourth  Resolution 
was,  whether  the  Congress  should  "recur  to  the  law  of 
nature"  as  determining  the  rights  of  America.  He 
says  that  he  was  ''very  strenuous  for  retaining  and  in- 
sisting on  it,"  and  the  Resolutions  show  that  he  suc- 
ceeded, for  they  based  the  American  position  on  the 
principles  of  "free  government"  and  "good  govern- 
ment," recognized  that  the  "consent"  of  the  American 
Colonies  to  Acts  of  the  British  Parliament  justly  regu- 
lating the  matters  of  common  interest  was  a  "consent 
from  the  necessity  of  the  case  and  a  regard  to  the  mutual 
interests  of  both  countries,"  and  claimed  the  rights  of 
"life,  liberty  and  property"  without  reference  to  the 
British  Constitution  or  the  American  Charters.  Jef- 
ferson tells  us  that  throughout  the  period  of  nearly 
two  years  which  intervened  between  the  assembling 
of  the  Congress  and  the  promulgation  of  the  Declaration, 
the  principles  of  the  law  of  nature  and  of  nations  set 
forth  in  the  preamble  were  discussed,  and  that  when  he 
wrote  the  preamble  he  looked  at  no  book,  but  simply 
stated  the  conclusions  at  which  the  Congress,  with 
apparently  practical  unanimity,  had  arrived. 

But  it  is  not  necessary,  it  would  seem,  to  resort  to 
to  external  evidence  to  prove  that  1^e  Declaration  is 
based  on  the  doctrine  of  the  Reforma^JQiL.  In  several 
places  it  seems  to  expressly  declare  that  the  rights 
claimed  by  America  are  claimed  under  the  law  of  nature 


48    The  American  Philosophy  of  Government 

and  of  nations  based  on  divine  revelation  and  human 
reason. 

From  the  doctrine  of  equality  arising  from  the  com- 
mon creation  of  all  men  by  a  personal  Creator  to  whom 
all  were  equally  related,  it  is  declared  by  the  Declara- 
tion to  follow  as  a  ''self-evident"  truth  that  there  are 
certain  rights,  which  are  attached  to  all  men  by  endow- 
ment of  the  Creator  as  being  the  correlative  of  the 
unalienable  needs  of  all  men,  and  which  inasmuch  as 
they  arise  from  the  universal  limitations  which  the 
Creator  has  imposed,  are  as  unalienable  as  the  needs 
themselves.  These  unalienable  rights  are  declared  to  be 
the  rights  of  life,  liberty,  and  the  pursuit  of  happiness. 

The  doctrine  of  unalienable  rights,  necessarily  sup- 
poses a  universal  law,  for  the  conception  of  law  must 
precede  the  conception  of  right.  This  law,  as  conceived 
of  by  the  Declaration  is  a  common  and  universal  law. 

In  the  first  part  of  the  preamble  this  universal  common 
law  is  spoken  of  as  ' '  the  law  of  Nature  and  of  Nature's 
God."  Inasmuch  as  the  rights  claimed  are  those  which 
depend  for  their  existence  upon  revelation  as  well  as 
reason,  it  is  evident  that  this  common  and  universal 
law  to  which  the  Declaration  appeals,  is  the  "law  of 
nature  and  of  nations,"  of  the  scholars  of  the  Refor- 
mation, which  was  conceived  of  as  based  on  revelation 
and  reason,  and  as  governing  every  relationship  of  men, 
of  bodies  corporate,  of  communities,  of  states,  and  of 
nations.  Out  of  this  conception  there  had  already 
grown  that  great  division  of  the  law  which  deals  with 
the  temporary  relations  between  independent  states, 
which  we  now  call  International  Law. 

Having  thus  established  the  doctrine  of  unalienable 
rights,  based  on  a  universal  common  law  of  nature  and 
of  nations,  which  all  men,  all  bodies  corporate,  all  com- 
munities, all  governments,  all  states,  and  all  nations 


The  Declaration  of  Independence  49 

were  bound  to  enforce,  the  Declaration  proceeds  to  a 
consideration  of  the  forms,  methods,  and  instrumentali- 
ties by  which  these  unalienable  rights  are  to  be  secured. 
It  declares  that  the  primary  instrumentality  by  which 
these  rights  are  secured,  are  governments  "deriving 
their  just  powers  from  the  consent  of  the  governed." 
Contrary  to  the  usual  interpretation,  the  Declaration 
does  not  state  that  government  is  the  expression  of  the 
will  of  the  majority,  r^nve^rnf^nt^,  ^^  ig  ri^^larpH^  arf>, 
instituted  to  "secure"  the  "unalienable  rights"  of  indi- 
viduals^ The  will  of  the  fiiajority,  of  course,  is  quite 
as  likely  to  destroy  as  to  secure  the  unalienable  rights 
of  individuals.  Moreover,  the  Declaration  says  merely 
that  "governments  are  instituted  among  men" — not 
that  men  universally  institute  their  own  governments. 
The  whole  statement  that  the  governments  which  are 
instituted  among  men  to  secure  the  unalienable  rights 
of  individuals,  universally,  "derive  their  just  powers 
from  the  consent  of  the  governed,"  is  inconsistent  with 
the  proposition  that  governments  are  the  expression 
of  the  mere  will  of  the  majority,  for  it  is  only  their 
"just  powers"  that  governments  "derive"  from  "the 
consent  of  the  governed,"  and  the  will  of  the  majority 
may  be  just  or  unjust.  The  expression  "deriving  their 
just  powers  from  the  consent  of  the  governed"  seems 
to  me  most  probably  to  be  an  epitome  and  summary  of 
the  two  fundamental  propositions  of  the  law  of  agency 
— ''Ohligatio  mandati  consensus  contrahentium  consistit, 
a  free  translation  of  which  is  "The  powers  of  an  agent 
are  derived  from  the  consent  of  the  contracting  parties," 
and  Rei  turpis  nullum  mandatum  est,  a  free  translation 
of  which  is  "No  agent  can  have  unjust  powers."  On 
this  interpretation  the  meaning  of  the  whole  sentence 
"that  to  secure  these  rights,  governments  are  instituted 
among  men,  deriving  their  just  powers  from  the  consent 


50    The  American  Philosophy  of  Government 

of  the  govemed,"  is,  it  would  seem,  that  there  is  a 
universal  right  of  all  communities  to  have  a  government 
of  a  kind  best  adapted  for  the  securing  of  the  unalien- 
able rights  of  individuals,  instituted  either  by  their  own 
selection  or  by  the  appointment  of  an  external  power, 
and  that  all  governments,  however  instituted,  are  uni- 
versally the  agents  of  the  governed  to  secure  these 
rights.  Government  is  thus  declared  not  to  be  the 
expression  of  the  will  of  the  majority,  but  the  applica- 
tion of  the  just  public  sentiment  justly  ascertained 
through  forms  best  adapted  for  this  purpose. 

The  free  statehood  which  is  claimed  in  the  concluding 
part  of  the  Declaration  to  be  the  right  of  the  Colonies 
is  by  the  Declaration  based  on  the  philosophical  decla- 
rations of  the  preamble.  The  particular  proposition 
which  bears  upon  the  right  of  free  statehood  is  evidently 
the  one  which  declares  that,  **to  secure  these  [unalien- 
able] rights  [of  individuals],  governments  are  instituted 
among  men,  deriving  their  just  powers  from  the  consent 
of  the  governed."  The  intermediate  propositions,  as 
the  result  of  which  the  universal  right  of  free  statehood 
follows  from  this  proposition,  are,  it  would  seem,  these: 
If  government  is  the  doing  of  justice  according  to  pub- 
lic sentiment,  government  is  the  expression  and  appli- 
cation of  a  spiritually  and  intellectually  educated 
public  sentiment,  since,  although  a  rudimentary  know- 
ledge of  what  is  just  is  implanted  in  every  human  being, 
a  full  knowledge,  of  what  is  just,  comes  only  after  a 
course  of  spiritual  and  intellectual  education.  Hence  it 
follows  that  the  forms  and  methods  of  government  should 
be  such  as  are  adapted  to  such  spiritual  and  intellectual 
education.  Education  takes  place  by  direct  personal 
contact,  and  can  be  best  accomplished  only  through 
the  establishment  of  permanent  groups  of  individuals 
who  are  all  imder  the  same  conditions.    The  formation 


I 


The  Declaration  of  Independence  51 

and  expression  of  a  just  public  sentiment,  therefore, 
requires  the  establishment  of  permanent  groups  of  per- 
sons, more  or  less  free  from  any  external  control  which 
interferes  with  their  rightful  action,  under  a  leadership 
which  makes  for  their  spiritual  and  intellectual  educa- 
tion in  justice.    Such  permanent  groups  within  territorial 
limits  of  suitable  size  for  developing  and  expressing  a 
just  public  sentiment,  are  free  states.    Territorial  divi- 
sions of  persons  set  apart  for  the  purpose  of  convenience 
in  determining  the  local  public  sentiment,  regardless  of 
its  justness  or  unjustness,  are  not  states,  but  are  mere 
voting  districts.     Just  public  sentiment,  for  its  express- 
ion and   application,  requires   the   existence  of  many- 
small  free  states,  disconnected  to  the  extent  necessary 
to  enable  each  to  be  free  from  all  improper  external 
control  in  educating  itself  in  the  ways  of  justice;  mere 
public  sentiment,  for  its  expression  and  application,  re- 
quires only  the  existence  of  a  few  great  states  divided 
into  voting  districts,  each  district  being  under  the  con- 
trol of  the  Central  Government,  which  is  to  it  an  exter- 
nal control.     Just  public  sentiment,  as  the  basis  of 
government,   is  a  basis  which  makes  government  a 
mighty  instrument  for  spirituality  and  growth;  mere 
public  sentiment,  regardless  of  its  justness  or  unjustness, 
as  the  basis  of  government,  is  a  basis  which  makes 
government  a  mighty  instrument  for  brutality  and 
deterioration.      Human    equality,    unalienable   rights, 
government  according  to  just  public  sentiment,  and 
free  statehood,  are  inevitably  and  forever  linked  to- 
gether as  reciprocal  cause  and  effect. 

The  ultimate  meaning  of  the  expression  "that  to  se- 
cure these  rights  governments  are  instituted  among 
men,  deriving  their  just  powers  from  the  consent  of 
the  governed,"  seems  therefore  to  be  that  by  the  com- 
mon law  of  nature  and  of  nations  there  is  a  universal 


52    The  American  Philosophy  of  Government 

right  of  free  statehood  which  pertains  to  all  communi- 
ties on  the  face  of  the  earth  within  territorial  limits  of 
suitable  size  for  the  development  and  operation  of  a 
just  public  sentiment. 

So  complete  and  universal  are  the  principles  of  gov- 
ernment by  just  public  sentiment  and  of  free  statehood 
that,  according  to  the  Declaration,  even  when  all  the 
people  of  a  free  state  are  meeting  together  to  alter  or 
abolish  a  form  of  government  which  has  become  de- 
structive of  the  ends  of  its  institution,  as  it  is  declared 
they  may  rightfully  do,  their  right  to  form  a  new  gov- 
ernment is  not  absolute  so  that  they  can  rightfully  do 
whatever  the  majority  wills,  but  is  limited  by  this  uni- 
versal common  law,  so  that  they  can  rightfully  institute 
only  a  new  form  of  government  whose  foundation  prin- 
ciples and  mode  of  organization  are  such  **as  to  them 
shall  seem  most  likely  to  effect  their  safety  and  happi- 
ness"— that  is,  to  secure  the  unalienable  rights  of  indi- 
viduals to  life,  liberty,  and  the  pursuit  of  happiness. 

The  declaration  of  the  universal  right  of  free  state- 
hood is  accompanied,  in  the  Declaration,  by  the  claim 
that  the  Colonies,  as  free  states,  had  always  been  in 
political  ''connection"  with  the  State  of  Great  Britain. 
The  concluding  part  of  the  Declaration  reads: 

We,  therefore,  .  .  .  declare  that  these  United  Colonies 
are,  and  of  right  ought  to  be,  free  and  independent  states, 
.  .  .  and  that  all  political  connection  between  them  and  the 
State  of  Great  Britain  is,  and  ought  to  be,  totally  dissolved. 

In  this  it  was  necessarily  implied  that  the  Colonies 
had  always  been  free  states  or  free  and  independent 
states,  and  that,  by  the  Declaration,  at  most  their  right 
of  independent  statehood  came  into  existence;  that 
they  had  theretofore  at  all  times  been  in  political  con- 


The  Declaration  of  Independence  53 

nection,  either  as  free  states  under  the  law  of  nature 
and  of  nations,  or  as  free  and  independent  states  by 
implied  treaty,  with  the  free  and  independent  State  of 
Great  Britain;  that  the  dissolution  of  the  connection 
had  not  come  about  by  an  act  of  secession  on  their 
part,  but  was  due  to  the  violation,  by  the  State  of 
Great  Britain,  either  of  the  law  of  nature  and  of  na- 
tions, or  of  the  implied  treaty  on  which  the  political 
connection  was  based. 

The  term  "connection"  was  an  apt  term  to  express  a 
relationship  of  equality  and  dignity.  ''Connection" 
implies  two  things,  considered  as  units  distinct  from  one 
another,  which  are  bound  together  by  a  connecting 
medium.  Just  connection  implies  free  statehood  in  all 
the  communities  connected.  Union  is  a  form  of  con- 
nection in  which  the  connected  free  states  are  consoli- 
dated into  a  unity  for  the  common  purposes,  though 
separate  for  local  purposes.  Merger  is  the  fusion  of  two 
or  more  free  states  into  a  single  unitary  state.  Con- 
nection between  free  states  may  be  through  a  legislative 
medium,  or  through  a  justiciary  medium,  or  through  an 
executive  medium.  The  connecting  medium  may  be  a 
person,  a  body  corporate,  or  a  state.  States  connected 
through  a  legislative  medium,  whether  a  person,  a  body 
corporate  or  a  state,  and  whether  wholly  external  to 
the  states  connected  qt  to  some  extent  internal  to  them, 
whose  legislative  powers  are  unlimited  or  which  deter- 
mines the  limits  of  its  own  legislative  powers,  are 
"dependent"  upon  or  "subject"  to  the  will  of  the 
legislative  medium.  Such  states  are  "dependencies," 
"dominions,"  "subject-states,"  or  more  accurately 
"slave-states," — or  more  accurately  still,  not  states  at 
all,  but  mere  aggregations  of  slave-individuals.  States 
connected  through  a  legislative  medium,  whether  a  per- 
son, a  body  corporate,  or  a  state,  and  whether  wholly  ex- 


54    The  American  Philosophy  of  Government 

ternal  to  the  states  connected  or  in  part  internal  to  them, 
whose  legislative  powers  are  granted  by  the  states  and 
which  have  only  such  legislative  powers  as  are  granted, 
are  in  a  condition  of  limited  dependence,  dominion,  and 
subjection;  but  their  relationship  is  by  their  voluntary 
act  and  they  may,  and  by  the  terms  of  the  grant  always 
do  to  some  extent  control  the  legislative  will  to  which 
they  are  subject  and  on  which  they  are  dependent. 
Where  states  are  connected  or  united  through  a  jus- 
ticiary medium,  whether  that  justiciary  medium  is 
a  person,  a  body  corporate,  or  a  state,  all  the  states 
are  free  states,  their  relationships  being  governed  by 
law.  Where  states  are  connected  through  an  executive 
medium,  whether  that  executive  medium  is  a  person,  a 
body  corporate,  or  a  state,  all  the  states  are  free  and  in- 
dependent states,  and  each  acts  according  to  its  will  All 
connections  in  which  the  legislative  medium, — whether 
a  person,  a  body  corporate  or  a  state,  and  whether 
wholly  external  to  the  states  connected,  or  to  some 
extent  internal  to  the  states  connected, — has  unlimited 
legislative  powers  or  determines  the  limits  of  its  own 
legislative  powers,  are  fictitious  connections,  the  rela- 
tionship being  really  one  which  implies  "empire"  or 
^'dominion"  on  one  side,  and  ''subjection"  or  ''depen- 
dence" on  the  other.  Such  connections  are  properly 
called  "empires"  or  "dominions."  So  also  all  connec- 
tions in  which  the  only  connecting  medium  is  a  common 
executive,  whether  a  person,  a  body  corporate  or  a 
state,  are  fictitious  connections,  the  relationship  being 
one  of  "permanent  alliance"  or  "confederation"  be- 
tween independent  states.  Such  connections  are  prop- 
erly called  "alliances"  or  "confederations."  The  only 
true  connections  are  those  in  which  there  is  a  legislative 
medium,  whether  a  person,  a  body  corporate  or  a  state, 
whose  legislative  powers  are  limited,  by  agreement  of 


The  Declaration  of  Independence  55 

the  connected  states,  to  the  common  purposes,  and  those 
in  which  there  is  a  justiciary  medium,  whether  a  person, 
a  body  corporate,  or  a  state,  which  recognizes  its  powers 
as  Hmited  to  the  common  purposes  by  the  law  of  nature 
and  of  nations,  and  which  ascertains  and  applies  this 
law,  incidentally  adjudicating,  according  to  this  law, 
the  limits  of  its  own  jurisdiction.  Just  connections 
tend  to  become  unions,  it  being  found  in  practice  nec- 
essary, for  the  preservation  of  the  connection  in  due 
order,  that  the  power  of  limited  legislation  for  the  com- 
mon purposes  and  the  power  of  adjudicating  and  apply- 
ing the  law  for  the  common  purposes  should  extend 
not  only  to  the  states,  but  to  all  individuals  throughout 
the  states. 

Thus  ''dependence,"  as  a  fictitious  and  vicious  form 
of  connection,  is,  it  would  appear,  forever  opposed  to 
"connection"  of  a  just  and  proper  kind.  If  it  were 
attempted  to  sum  up  the  issue  of  the  American  Revo- 
lution in  an  epigram,  would  not  that  epigram  be: 
"'Colony,'  or  'Free  State?'  'Dependence,'  or  'Just  Con- 
nection?' 'Empire,'  or  'Union?'" 

According  to  the  opinion  of  the  Revolutionary  states- 
men, as  it  would  seem,  a  universal  right  of  free  statehood 
does  not  imply  a  universal  right  of  self-government. 
Statehood  and  self-government  are  two  different  and 
distinct  conceptions.  The  Americans  clai^pf^  tinp  fipht 
of  free  statehood  as  a  part  of  the  universal  rights  of 
man,  but  they  claimed  the  right  of  self-government 
because  they  were  EngHshmen  trained  by  generations 
'ot  experience  in  the  art  of  self-government  and  so  ca- 
pable of  PYPrpic;ingr  fVip  art^  A  y^tate  is  not  less  or  more 
a  free  state  because  it  has  self-government.  It  is  a 
free  state  when  its  just  public  sentiment  is  to  any  extent 
ascertained  and  executed  by  its  government, — however 
that   government  may   be  instituted, — free  from  the 


56    The  American  Philosophy  of  Government 

control  of  any  external  power.  It  does  not  prevent  a 
region  from  being  a  free  state  that  its  government  is 
wholly  or  partly  appointed  by  an  external  power,  if 
that  government  is  free  from  external  control  in  ascer- 
taining and  executing  the  just  local  sentiment  to  any 
extent.  Nor  does  it  interfere  with  the  right  of  free 
statehood  when  an  external  power  stands  by  merely  to 
see  that  the  local  government  ascertains  and  executes 
the  just  local  sentiment  to  a  proper  extent.  The  exter- 
nal power  in  that  case  is  upholding  the  free  statehood 
of  the  region.  It  stands  as  surety  for  the  continuance 
of  free  statehood. 

The  right  of  self-government,  according  to  this  view, 
is  a  conditional  universal  right  of  free  states.  When  a 
community,  inhabiting  a  region  of  such  territorial  ex- 
tent that  it  is  not  too  large  to  make  it  possible  for  a  just 
public  sentiment  concerning  its  affairs  to  be  developed 
and  executed,  and  not  so  small  as  to  make  it  incon- 
venient that  it  should  be  in  any  respect  free  from  exter- 
nal control,  is  of  such  moral  and  intellectual  capacity 
that  it  can  form  and  execute  a  just  public  sentiment 
concerning  its  internal  affairs  and  its  relations  with 
other  communities,  states  and  nations,  it  has  not  only 
the  right  of  free  statehood, — that  is,  of  political  per- 
sonality,— which  is  of  universal  right,  but  also  the  right 
of  self-government.  The  right  of  such  a  free  state  to 
self-government  is  complete  if  there  be  no  just  political 
connection  or  union  between  it  and  other  free  states, 
or  partial,  if  such  a  just  connection  or  union  exists, 
being  limited,  in  this  latter  case,  to  the  extent  necessary 
for  the  preservation,  in  due  order,  of  the  connection  or 
union. 

Independence  was  regarded  apparently  also,  by  the 
Declaration,  when  it  declared  the  Colonies  to  be  "free 
and  independent  states,"  to  be  a  right  superadded  to 


The  Declaration  of  Independence  57 

the  right  of  free  statehood  in  some  cases,  and  there- 
fore to  be  a  conditional  universal  right  of  free  states 
— that  is,  a  right  universally  existing  where  the  con- 
ditions necessary  to  independence  —  great  physical 
strength,  and  great  moral  and  intellectual  ability — 
exist. 

The  Colonies  regarded  themselves  as  free  states  in 
such  a  just  and  rightful  connection  with  the  free  and 
independent  State  of  Great  Britain  as  to  form  with  it 
a  union.  From  this  it  followed,  inasmuch  as  this  con- 
nection and  union  was  conceived  of  as  existing  under  a 
universal  common  law,  that  the  State  of  Great  Britain, 
through  its  Government,  was  the  justiciary  medium 
which  connected  the  free  states  of  that  which  they  con- 
ceived of  as  the  British-American  Union,  and  as  such 
applied  the  principles  of  this  universal  common  law 
for  preserving  and  maintaining  in  due  order  the  con- 
nection and  union.  There,  therefore,  resulted  the  con- 
ception of  Great  Britain  as  what  may  perhaps  be  called 
"the  Justiciar  State"  of  this  British- American  Union. 
If  we  were  to  use  the  exact  language  of  the  Revolution, 
it  would  probably  be  more  proper  to  speak  of  Great 
Britain  as  "the  Superintending  State"  of  the  British- 
American  Union,  as  the  power  of  Great  Britain  over 
the  Colonies  was  generally  spoken  of  by  the  Americans 
as  "the  superintending  power."  Lord  Chatham  used 
this  expression  in  his  famous  bill  introduced  in  the 
House  of  Lords.  The  expression  "Justiciar  State," 
however,  seems  to  be  more  scientifically  correct.  A 
Justiciar  was  an  official  who  exercised  the  power  of 
government  in  a  judicial  manner.  His  power  was  nei- 
ther strictly  legislative,  nor  strictly  executive,  nor 
strictly  judicial,  but  was  complex,  being  compounded  of 
all  three  powers,  so  that  his  executive  action,  taken 
after  judicially  ascertaining  the  facts  in  each  case  and 


58    The  American  Philosophy  of  Government 

applying  to  them  just  principles  of  law,  resulted  in 
action  having  the  force  of  legislation. 

The  Revolutionary  statesmen  have  left  a  very  con- 
siderable literature  showing  their  views  concerning  the 
nature  of  the  right  of  a  state  to  be  the  Justiciar  State 
of  a  Union  of  States,  and  concerning  the  powers  which 
a  Justiciar  State  may  rightfully  exercise. 

Arguing  on  the  same  basis  as  that  adopted  by  them 
regarding  the  right  of  self-government  and  indepen- 
dence, it  appears  that  they  considered  the  right  of  a 
state  to  act  as  Justiciar  for  other  states  to  be  a  right 
superadded  to  the  right  of  self-government  and  inde- 
pendence in  some  cases — that  is,  that  justiciarship  is  a 
conditional  universal  right  of  self-governing  and  inde- 
pendent states,  the  conditions  necessary  to  its  existence 
being  great  physical  strength,  a  judicial  character  and 
a  capacity  for  leadership. 

The  power  exercised  by  a  Justiciar  State  in  a  Jus- 
ticiary Union,  they  recognized  as  being  neither  strictly 
legislative,  nor  strictly  executive,  nor  ^rictly  judicial, 
but  a  power  compounded  of  all  these  three  powers. 
They  considered  that  it  was  to  be  exercised  for  the 
common  purposes  after  investigation  by  judicial 
methods;  that  the  just  public  sentiment  of  the  free 
states  connected  and  united  with  the  Justiciar  State 
was  to  be  considered  by  it  in  the  determination  of  the 
common  affairs;  and  that  the  action  of  the  Justiciar 
State  was  to  result,  after  proper  hearing  of  the  free 
states  and  all  parties  concerned,  in  dispositions  and 
regulations  made  according  to  just  principles  of  law, 
which  were  to  have  the  force  of  supreme  law  in  each  of 
the  connected  and  united  free  states  respectively.  This 
kind  of  power,  which  the  Fathers  called  "the  superin- 
tending power"  or  "the  disposing  power"  under  the 
law  of  nature  and  of  nations,  and  which  may  be  called, 


The  Declaration  of  Independence  59 

using  an  expression  now  coming  into  use,  "the  power  of 
final  decision,"  or  more  briefly  "the  justiciary  power," 
being  neither  legislative,  executive,  nor  judicial,  but 
more  nearly  executive  than  legislative,  the  more  con- 
servative among  them  considered  might  be  exercised, 
consistently  with  the  principles  of  the  law  of  nature 
and  of  nations,  either  by  the  Legislative  Assembly  of 
the  Justiciar  State  or  by  its  Chief  Executive,  advised 
by  properly  constituted  Administrative  Tribunals  or 
Councils ;  the  action  of  the  Legislative  Assembly  super- 
seding that  of  the  Chief  Executive  in  so  far  as  they 
might  be  inconsistent  with  each  other.  This  right  of 
both  the  Legislative  Assembly  and  of  the  Chief  Execu- 
tive, properly  advised,  to  exercise  the  powers  of  the 
Justiciar  State — the  former  having  supreme,  and  the 
latter  superior  justiciary  power, — under  the  law  of  na- 
ture and  of  nations,  is,  I  believe,  also  recognized  by  our 
Constitution,  as  I  have  elsewhere  attempted  to  show. 

Of  course  there  must  be  conditions  of  transition  where 
the  relations  between  free  states  which  would  normally 
be  in  union,  or  between  detached  portions  of  what 
would  normally  be  a  unitary  state,  temporarily  assume 
a  form  which  is  partly  one  of  union  or  merger,  and 
partly  of  dependency.  The  justification  of  all  such 
forms  of  relationship  must,  it  would  seem,  be  found  in 
the  fundamental  right  which  every  independent  state, 
whether  a  justiciar  state  or  not,  has  to  the  preservation 
of  its  existence  and  its  leadership  or  judgeship — that 
is,  in  the  right  of  self-preservation,  which,  when  neces- 
sary to  be  invoked,  overrules  all  other  rights.  On  this 
theory  must,  it  would  seem,  be  explained  the  relations 
between  the  American  Union  and  its  Territories,  be- 
tween Germany  and  Alsace-Lorraine,  and  between 
England  and  Ireland.  On  this  theory  of  self-preser- 
vation, also,  must,  it  would  seem,  be  explained  the 


6o    The  American  Philosophy  of  Government 

permanent  relationship  of  dependency  which  exists 
between  the  District  of  Columbia  and  the  American 
Union — such  dependency  being  necessary  to  the  preser- 
vation of  the  life  of  the  Union. 

Out  of  the  conception  of  a  universal  common  law  of 
nature  and  of  nations  which  governs  all  human  acts 
and  relationships, — and  therefore  all  the  acts  and  rela- 
tionships of  states  and  nations  as  well  as  of  men,  bodies 
corporate  and  communities, — there  has  arisen  and  at 
the  present  time  exists,  a  science  of  the  universal  and 
common  law  of  the  state,  called  the  Science  of  the  Law 
of  the  State,  which  concerns  itself  with  the  internal 
relations  of  a  state  to  its  people,  its  bodies  corporate  and 
its  communities,  and  a  science  of  the  universal  and  com- 
mon law  of  independent  states,  called  the  Science  of 
International  Law,  which  concerns  itself  with  the  occa- 
sional and  temporary  relations  of  independent  states. 
The  great  field  of  law  which  concerns  the  permanent 
relations  of  free  states  is  not  yet  covered  by  a  recog- 
nized science.  Must  there  not  therefore  emerge  from 
this  conception  of  a  universal  and  common  law  of 
nature  and  of  nations,  a  third  science  of  law,  covering 
this  field,  which  will  take  as  its  basal  proposition  the 
doctrine  that  free  statehood  is  the  normal  and  rightful 
condition  of  all  communities  on  the  earth's  surface 
within  suitable  limits  for  the  formation  of  a  just  public 
sentiment,  and  which  will  concern  itself  with  the  per- 
manent relations  between  free  states?  As  such  per- 
manent relations  must  always  be  by  just  connection, 
either  in  its  simple  form  or  in  the  form  of  union,  may 
not  such  a  science  of  law,  standing  between  the  science 
of  the  Law  of  the  State  and  the  science  of  International 
Law,  be  called  the  science  of  the  Law  of  Connections 
and  Unions  of  Free  States? 

Taking  the  whole  Declaration  together,  and  reading 


The  Declaration  of  Independence  6i 

it  in  the  Hght  of  the  political  literature  which  was  put 
forth  on  both  sides  of  the  water  between  the  years  1764 
and  1776,  it  seems  to  be  necessary  to  conclude  that  the 
views  of  the  most  conservative  of  the  American  states- 
men of  the  period  concerning  the  connection  between 
Great  Britain  and  the  Colonies  were  these: 

They  considered,  as  I  interpret  their  language,  that  the 
connection  between  the  free  and  independent  State  of 
Great  Britain,  and  the  American  Colonies,  as  free  states, 
had  existed  and  of  right  ought  to  have  existed,  accord- 
ing to  the  principles  of  the  law  of  nature  and  of  nations 
— that  law  being  based  on  principles  opposed  to  the 
principles  applied  by  the  governments  of  Europe,  and 
being  thus  what  may  be  called  a  law  of  nature  and  of 
nations  according  to  the  American  System.  Had  they 
used  a  more  definite  and  scientific  phraseology,  it  seems 
that  their  view  would  best  be  expressed  by  saying  that 
they  considered  that  the  relationship  between  Great 
Britain  and  the  Colonies  had  always  existed  according 
to  the  principles  of  the  Law  of  Connections  and  Unions 
of  Free  States.  They  accordingly  admitted,  as  I  under- 
stand them,  that  Great  Britain,  as  a  free  and  indepen- 
dent state,  had  power,  as  Justiciar,  over  the  American 
Free  States,  for  the  common  purposes  of  the  whole 
Union,  to  finally  decide,  by  dispositions,  ordinances  and 
regulations  having  the  force  of  supreme  law,  made 
through  its  Government  after  a  judicial  hearing  in  each 
case  for  the  investigation  of  facts  and  the  application 
to  them  of  the  principles  of  the  Law  of  Connections 
and  Unions  of  Free  States,  upon  all  questions  of  com- 
mon interest  arising  out  of  the  connection  and  union; 
and  that  each  of  the  American  Free  States  had  power, 
through  its  Legislature,  to  legislate  according  to  the 
just  public  sentiment  in  each,  and  the  right  to  have  its 
local  laws  executed  by  its  Executive  and  interpreted 


62    The  American  Philosophy  of  Government 

and  applied  by  its  Courts,  free  from  all  control  by  the 
State  of  Great  Britain,  except  what  was  necessary  to 
protect  and  preserve  the  Union. 

In  this  view,  the  actions  of  the  Americans  show  the 
evolution  of  a  continuous  theory  and  policy,  and  the 
application  of  a  single  American  system  of  pn'nriplpc^, — 
a  system  which  was  haseH   upon   frp(^  c^tfltpVianH,   jii«^t 
connection  and  union.    The  British-American  Union  of 
1763  was  a  Union  of  States  under  the  State  of  Great 
Britain  as  Justiciar,  that  State  having  power  to  dispose 
of  and  make  all  rules  and  regulations  respecting  the 
connected  and  united  free  states,  needful  to  protect 
and  preserve  the  connection  and  union,  according  to 
the  principles  of  the  Law  of  Connections  and  Unions. 
The  dissolution  of  this  Union,  caused  by  the  violation 
by  the  State  of  Great  Britain  of  its  duties  as  Justiciar 
State,  gave  a  great  impetus  to  the  extreme  states'- 
rights  party,  and  the  next  connection  formed, — that  of 
1778  under  the  Articles  of  Confederation, — was  not  a 
Union,  the  Common  Government  (the  Congress)  being 
merely  a  Chief  Executive.    Such  a  connection  proving 
to  be  so  slight  as  to  be  little  more  than  a  fiction,  they 
formed,  under  the  Constitution  of  1787,  the  only  other 
kind  of  a  union  which  appears  to  be  practicable,  namely, 
a  union  under  a  common  government  which  was  a  Chief 
Legislature  for  all  the  connected  and  United  States  by 
their  express  grant,  and  whose  powers  were  expressly 
limited,  by  limitation  in  the  grant,  to  the  common  pur- 
poses of  the  whole  connection  and  union  of  free  states. 

If  the  Constitution,  in  defining  what  are  the  common 
purposes  of  the  Union  and  what  the  local  purposes  of 
the  States  of  the  Union,  is  declaratory  of  the  principles 
of  the  Law  of  Connections  and  Unions  of  Free  States, 
as  it  seems  not  unreasonable  to  hold,  the  Limited  Legis- 
lative Union  formed  under  the  Constitution  may  per- 


The  Declaration  of  Independence  63 

haps  be  considered,  in  view  of  the  supremacy  of  the 
Judiciary,  as  Guardians  of  the  Constitution,  over  the 
Limited  Legislature,  as  a  species  of  Justiciary  Union. 

Moreover,  if  in  what  has  been  said  we  are  correct, 
the  relationship  at  present  existing  between  the  Ameri- 
can Union  and  the  Insular  regions,  is  that  of  de  facto 
Justiciary  Union,  and  the  American  Congress,  under  the 
lead  of  President  McKinley  and  President  Roosevelt, 
has  acted,  with  reference  to  these  regions,  according  to 
the  principles  of  the  American  system.  The  American 
Union,  through  President  McKinley,  has  declared  itself 
to  be  '*a  liberating,  not  a  conquering  nation,"  and  has 
recognized  the  people  of  Hawaii,  Porto  Rico  and  the 
Philippines  as  each  having  a  separate  and  local  citizen- 
ship, thus  recognizing  each  of  these  regions  as  a  de 
facto  free  state  connected  with  the  American  Union. 
The  action  of  the  American  Union  extends  to  the  regu- 
lation of  the  action  of  individuals  in  these  free  States, 
so  that  a  Greater  American  Union  of  Free  States  exists 
de  facto.  To  bring  into  existence  a  Greater  American 
Union  de  jure,  it  needs,  first,  the  public  and  express 
recognition  by  the  American  Union  of  itself  as  the  Jus- 
ticiar State,  and  of  each  of  the  separate  Insular  regions 
within  proper  territorial  limits,  as  a  Free  State  in  just 
connection  and  union  with  the  American  Union;  and, 
secondly,  the  establishment  by  the  American  Union 
of  the  necessary  Advisory  Council  for  investigating 
facts  and  for  advising  the  President  before  he,  on  behalf 
of  the  American  Union  as  Justiciar  State,  exercises  his 
superior  justiciary  powers,  and  for  advising  the  Con- 
gress before  it,  in  the  same  behalf,  exercises  its  supreme 
justiciary  powers.  Councils  suitable  for  advising  the 
local  Governors,  when  they,  on  behalf  of  the  American 
Union  as  Justiciar  State,  exercise  their  inferior  justici- 
ary powers,  already  exist.     Of  such  a  Greater  American 


64    The  American  Philosophy  of  Government 

Union,  the  present  American  Union  would  be  the  Su- 
preme Justiciary  Head,  with  power  to  finally  determine 
the  questions  arising  out  of  the  relationship,  not  by 
edict  founded  on  will  and  force,  but  by  decision  care- 
fully made  in  each  case  after  ascertaining  the  facts  in 
each  case  and  applying  to  them  the  principles  of  the 
Law  of  Connections  and  Unions  properly  applicable  to 
them. 

Is  not  this  theory  the  true  via  media?  The  theory 
of  the  automatic  extension  of  the  constitution  of  a  state 
over  its  annexed  insular,  transmarine  and  transter- 
ranean  regions  which  from  their  local  or  other  circum- 
stances can  never  equally  participate  in  the  institution 
and  operation  of  its  government,  in  some  cases  protects 
individual  rights,  but  it  takes  no  account  of  the  right 
of  free  statehood,  which  is  the  prime  instrumentality 
for  securing  these  rights.  The  theory  of  a  power  over 
these  regions  not  regulated  by  a  supreme  law,  is  a  the- 
ory of  absolute  power  over  both  individuals  and  com- 
munities in  these  regions — a  theory  which  implies  an 
absence  of  all  rights.  The  theory  of  a  power  over  these 
regions  based  on  the  principles  of  the  Law  of  Connec- 
tions and  Unions,  granting  that  this  law  is  itself  based 
on  the  right  of  human  equality,  protects  the  rights  of 
persons,  of  communities,  of  states,  and  of  nations.  On 
this  theory  the  **  Territory  Clause"  of  the  Constitution 
recognizes  the  Law  of  Connections  and  Unions  as 
determining  the  relationship  between  the  American 
Union  and  the  Insular  regions — "needful"  rules  and 
regulations  being  those  which  are  adapted  to  accom- 
plish the  end  desired  and  which  are  consistent  with  the 
principles  of  the  Law  of  Connections  and  Unions  as 
declared  in  the  Declaration  of  Independence.  On  this 
theory,  the  doctrine  of  the  Supreme  Court  that  the  civil 
rights  of  individuals  in  cases  growing  out  of  our  rela- 


The  Declaration  of  Independence 


65 


tions  with  our  Insular  brethren  are  protected  by  '*the 
fundamental  principles  formulated  in  the  Constitution/' 
or  by  "the  applicable  provisions  of  the  Constitution," 
is   translated  into  the  doctrine  that  these  individual 
and    civil    rights   are  protected  by  the  principles  of 
the  Law  of  Connections  and  Unions  of  Free  States, 
as  these  principles  are  formulated  in  the  Constitution 
and  as  they  are  disclosed  by  an  examination  of  the 
applicable  provisions  of  the  Constitution,  and  that  not 
only  are  these  civil  rights  protected  by  this  law,  but 
also  the  political  rights  of  all  the  parties  to  the  relation- 
ship.   On  this  theory,  the  jurisdiction  of  the  Supreme 
Court  continues  to  be  exactly  the  same  as  at  present. 
The  necessary  Advisory  Councils  for  ascertaining  the 
just  political  relations  between  the  American  Union  and 
the  Insular  regions  and  for  determining  the  political 
rights  growing  out  of  that  relationship,  would  not  in 
the  least  interfere  with  the  Supreme  Court  in  the  exer- 
cise of  its  functions.     They  would  supplement  that 
Court,   which  now  protects   the   civil  rights    of    all 
concerned  through  its  adjudications  in  civil  cases,  by  as- 
sisting the  Congress  and  the  President  to  protect  and 
preserve  the  political  rights  of  all  concerned  through 
dispositions  and  needful  rules  and  regulations  in  polit- 
ical cases. 

By  adopting  this  theory  of  the  Reformation  and  the 
American  Revolution, ,  may  not  the  American  System 
extend  indefinitely  without  danger  to  America  herself? 
There  would  be  no  domination,  no  subjection.  The 
same  Law  of  Connections  and  Unions  would  extend 
over  and  govern  throughout  the  whole  Greater  Ameri- 
can Union.  This  Greater  American  Justiciary  Union 
would  be  but  a  logical  application  of  the  principles  under- 
lying the  American  Legislative,  Executive,  and  Judicial 
Union  formed  by  the  Constitution  of  the  United  States. 


66    The  American  Philosophy  of  Government 

It  would  not  be  the  Constitution  which  would  follow 
the  flag  into  the  regions  which  America  has  annexed  to 
herself,  but  the  Law  of  Connections  and  Unions,  which 
is  a  part  of  the  Law  of  Nature  and  of  Nations  according 
to  the  American  System. 

I  recur,  therefore,  to  my  first  proposition  and  submit 
to  your  judgment  whether  the  terms  * 'colony,"  "de- 
pendence," and  * 'empire,"  on  the  one  hand,  and  the 
terms  "free  state,"  "just  connection,"  and  "union,"  on 
the  other,  are  not  the  symbols  of  two  great  and  funda- 
mentally opposed  systems  of  politics — the  one  Euro- 
pean, and  the  other  American;  whether  the  American 
terms  and  the  American  System  are  not  capable  of 
being  applied  universally  and  beneficently,  in  the  way 
pointed  out  above,  throughout  all  places  outside  the 
present  Union  which  are  within  the  limits  of  its  jus- 
ticiary power;  and  whether,  if  they  are  capable  of  this 
application,  it  is  not  our  duty,  both  logically  and  ethi- 
cally, to  use  the  American  terms  in  describing  the  rela- 
tions between  us  and  our  Insular  brethren,  applying  at 
the  same  time  the  principles  of  the  American  System, 
and  thus  calling  into  existence  a  Greater  American 
Union. 


THE  DEVELOPMENT  OF  THE  AMERICAN 

DOCTRINE  OF  JURISDICTION  OF 
COURTS  OVER  STATES 


THE  DEVELOPMENT  OF  THE  AMERICAN 

DOCTRINE  OF  JURISDICTION  OF 

COURTS  OVER  STATES 

Reprinted  from  "Judicial  Settlement  of  International  Disputes," 
May,  19 II. 

BY  the  Articles  of  Confederation,  the  American 
States  made  the  United  States,  in  Congress 
assembled,  "the  last  resort  on  appeal"  in  all 
disputes  between  them,  and  authorized  the  Congress, 
upon  the  complaint  of  any  State  against  another,  to 
institute  a  special  tribunal,  according  to  a  method  pre- 
scribed by  the  Articles,  for  the  final  decision  of  the 
dispute.  By  the  Constitution,  the  people  of  the  United 
States  and  the  States  of  the  Union  established  a  Su- 
preme Court  of  the  United  States  and  made  it  a  tribunal 
for  the  judicial  settlement  of  all  interstate  and  interna- 
tional disputes  in  which  the  United  States  or  the  States 
of  the  Union  might  be  involved  with  each  other  or  with 
foreign  states,  and  which  were  capable  of  being  settled 
by  the  exercise  of  "the  judicial  power"  of  the  United 
States.  By  these  two  documents,  therefore,  it  was  re- 
cognized as  an  American  doctrine  that  disputes  between 
states  may,  under  some  circumstances,  properly  be 
settled  according  to  the  decision  of  courts — or,  to  put  it 
inversely,  that  courts  may,  under  some  circumstances, 
properly  have  jurisdiction  over  states. 

Now  that  the  states  of  the  society  of  nations  are  on 
the  point  of  establishing  a  Court  of  Arbitral  Justice  for 
the  settlement  of  such  international  disputes  as  are  ca- 

69 


70    The  American  Philosophy  of  Government 

pable  of  judicial  determination,  it  becomes  interesting 
to  discover  the  process  by  which  the  Supreme  Court  of 
the  United  States  has  been  evolved.  It  may  be  that 
by  tracing  this  line  of  development,  some  light  may 
be  thrown  upon  the  questions  which  are  now  presenting 
themselves  in  regard  to  the  proposed  international 
court. 

The  institutions  of  a  people  are  in  part  the  expressions 
of  their  political,  social,  and  economic  beliefs,  and  in 
part  the  result  of  experiments  made  by  them  and  of 
improvements  upon  institutions  which  have  stood  the 
test  of  experiment.  It  is  necessary,  therefore,  in  this 
inquiry,  to  examine  first  the  nature  of  the  political, 
social,  and  economic  beliefs  of  the  founders  of  the 
American  commonwealth ;  then,  to  investigate  their  ex- 
perience in  the  working  of  those  institutions  set  over 
them  by  England  as  their  mother  country,  or  estab- 
lished by  themselves,  which  bore  an  analogy  to  the 
Supreme  Court  of  modern  times,  and  to  ascertain  the 
process  by  which  these  early  institutions  were  improved 
and  adapted  to  the  changing  environment. 

In  our  search  for  the  political  doctrine  held  by  the 
American  colonists  which  may  reasonably  be  thought 
to  have  manifested  itself  in  our  Supreme  Court,  we  per- 
haps may  find  a  clue  in  a  remark  made  by  Grotius  in 
his  "  Three  Books  of  Peace  and  War."  Describing  the 
power  which  a  State  ought  to  exercise  over  its  colonies 
(lib.  i,  cap.  iii,  sec.  21),  he  says  that  while  the  Latins 
described  the  power  of  the  mother  city  or  state  by  the 
word  imperare,  to  command,  and  regarded  it  as  having 
the  imperium,  or  empire,  over  the  colonies,  the  Greeks 
"more  modestly"  described  the  power  of  the  mother 
city  by  the  word  xdaffstv,  to  dispose  or  set  in  order, 
and  regarded  the  mother  city  as  having  the  -riystJLovta 
that  is,  the  hegemony,  leadership  in  judgment  or  su- 


Jurisdiction  of  Courts  Over  States  71 

preme  jurisdiction.    The  American  colonists  regarded 
England,  their  mother  country,  as  the  Greek  colonists  ^ 
regarded  their  mother   city.     They   recognized  that  \ 
England  had  a  leadership  in  judgment  and  hence  a     \ 
supreme  jurisdiction  over  the  Colonies  for  the  purpose      | 
of  disposing  and  setting  in  order  their  affairs  to  the      1 
extent  that  might  be  necessary  for  the  common  defense     / 
and  for  the  general  welfare,  but  they  denied  its  power    / 
to  command.    They  insisted  that  the  execution  of  the  / 
judgments  of  the  mother  country  was  of  right  in  the  / 
Colonies  and  that,  in  extreme  cases,  where  its  decisions/ 
were  palpably  unjust,  the  Colonies  might  refuse  ty 
adopt  or  execute  them. 

The  American  colonists  went  farther,  and  denied  to' 
their  own  governments  and  to  all  governments  the 
power  of  absolute  command,  holding  that  government 
in  every  form  is  essentially  leadership  in  judgment. 
To  place  it  beyond  doubt  that  their  governments  did' 
not  have  the  imperium  of  the  Latins,  but  only  the  hege- 
mony of  the  Greeks,  they  adopted  the  custom  of  bind- 
ing their  governments  by  written  constitutions  regarded 
as  emanating  from  the  people,  limiting  the  powers 
which  the  government  was  authorized  to  exercise  and 
placing  it  in  the  position  of  an  authorized  agent  of  the 
people.  Their  representative  assemblies  they  called,  in 
some  cases,  general  courts;  and  they  held  the  members 
of  such  assemblies  responsible  as  members  of  a  supreme 
tribunal.  Every  act  of  government  they  regarded  as 
an  act  of  judgment,  and  they  considered  that  the  per- 
sons appointed  to  govern  were  but  the  leaders  in  the 
judgment.  They  held  that  the  final  judgment  rested 
in  the  whole  people,  who  confirmed  by  their  acquies- 
cence and  conformity  those  acts  of  government  which 
by  common  consent  were  regarded  as  necessary  and 
just,  and  who  ultimately  nullified  such  acts  of  govern- 


72    The  American  Philosophy  of  Government 

ment  as  by  common  consent  were  regarded  as  unneces- 
sary and  unjust.    With  regard  to  every  governmental 
act,  the  question  in  their  minds  was,  whether  the  act 
in  question  appealed  to  their  reasons  and  consciences 
as  necessary  and  just  under  the  circumstances.    If  the 
general  consensus  was  that  the  act  of  government  was 
necessary  and  just,  the  people  executed  it  as  a  matter 
of  choice  and  free  will.     Governmental  commands  and 
prohibitions,  in  their  view,  thus  derived  their  force 
from  the  judgments  on  which  they  were  based  and  on 
the  general  acquiescence  in  the  judgment  as  necessary 
and  just. 

The  social  ideas  of  the  American  colonists  were  based 
upon  Christianity.    The  people  were  thus  at  the  same 
time  individualists  and  humanitarians  and  sought  to 
find  the  middle  ground  between  selfishness  and  altruism. 
They  believed  in  the  equality  of  all  men  before  God  by 
reason  of  the  common  and  equal  creation  of  all  men 
by  God,  and  held  to  the  conception  of  a  law  of  nature 
imposed  by  God,  which  is  supreme  over  all  human  ac- 
tion and  relationship  and  to  which  all  men,  states,  and 
peoples  are  equally  subject.    This  law  of  nature  was  to 
their  mind  composed  of  those  principles  of  natural  jus- 
tice, based  primarily  on  the  equal  right  and  duty  of 
self -protection   and   self-preservation,   which   are   im- 
planted in  man  by  God,  and  which  are  in  part  revealed 
and  in  part  discoverable  by  the  enlightened  reason  and 
conscience.    All  governmental  acts  they  believed  were 
to  be  judged  by  the  people  according  to  this  supreme 
law. 

The  economic  ideas  of  the  American  colonists  were 
similar  to  their  social  ideas.  As  individualists  they  op- 
posed monopoly  and  caste  and  believed  in  the  funda- 
mental rights  of  self-protection  and  self-preservation, 
called  the  rights  of  life,  liberty,  and  property.     As  hu- 


Jurisdiction  of  Courts  Over  States  73 


manitarians  they  believed  that  trade,  commerce,  and  in- 
tercourse ought  to  be  free  and  universal,  limited  only  by 
the  necessities  of  self -protection  and  self-preservation. 

Holding  these  views,  the  American  colonists  regarded 
the  colonies  as  commonwealths  and  free  states,  and  at 
the  same  time  thought  it  not  inconsistent  that  these 
free  states  and  commonwealths  should  be  parts  of  the 
English  empire  and  the  English  commonwealth.  They 
willingly  assented  to  those  provisions  of  the  colonial 
charters  which  required  that  the  governmental  acts  of 
the  colonies  should  be  consistent  and  harmonious  with 
the  governmental  acts  of  England.  The  effect  of  this 
was,  to  make  the  law  of  England  a  supreme  law  of  the 
colonies,  governing,  not  only  the  people  of  the  colonies, 
but  the  colonies  themselves.  But  to  this  law  they  could 
not  yield  absolute  supremacy  consistently  with  their 
conception  of  a  supreme  and  universal  law  of  nature 
emanating  from  God.  They  therefore  regarded  the 
English  empire  and  commonwealth,  and  each  of  the 
constituent  states,  as  subject  in  the  first  instance  to 
the  law  of  England  as  a  supreme  law,  but  as  also  sub- 
ject in  the  last  resort  to  the  law  of  nature.  The  English 
and  colonial  courts  and  governments  also  recognized 
the  law  of  nations,  composed  of  the  principles  of  inter- 
national conduct  and  relationship  agreed  upon  by  inde- 
pendent states  and  manifested  in  treaties  or  in  their 
political  action,  though  even  this  law  the  American  colo- 
nists regarded  as  subordinate  to  the  law  of  nature. 
Disputes  between  the  states  forming  the  English  empire 
and  commonwealth,  involving  questions  capable  of 
judicial  determination,  were  thus  to  be  decided  by 
courts.  The  local  law  of  the  colony  was  applied  in 
cases  where  it  was  solely  applicable,  and  the  law  of 
England  or  the  law  of  nations  were  also  applied  where 
appHcable,  the  one  or  the  other  being  supreme  according 


74    The  American  Philosophy  of  Government 

to  the  nature  of  the  case;  the  law  of  nature  governing 
all  cases  not  covered  by  the  other  laws  and  being  su- 
preme over  all. 

Realizing,  however,  that  there  were  disputes  between 
states,  as  between  individuals,  involving  dignity  or 
vital  interests,  which  were  not  susceptible  of  decision 
by  the  cold  and  dispassionate  methods  of  investigation 
and  adjudication,  and  which  could  only  be  settled  by 
methods  taking  into  account  passions,  sentiments  and 
prejudices,  they  believed  that  the  settlement  of  dis- 
putes between  the  states  composing  the  English  empire 
and  commonealth  ought  to  be  in  the  charge  of  a 
specially  constituted  tribunal  fitted  by  training  to  act 
judicially  where  the  judicial  method  was  applicable  and 
to  act  diplomatically  where  the  judicial  method  was 
inapplicable.  Yielding  reasonable  deference  to  Eng- 
land as  the  mother  country,  they  were  willing  to  entrust 
her  with  the  duty  of  establishing  and  maintaining  such 
a  tribunal.  During  the  colonial  period,  the  people  of 
the  colonies  consented  that  the  arbitration  or  adjudica- 
tion of  disputes  between  the  colonies  or  between  one 
or  more  of  the  colonies  and  England  should  be  con- 
ducted before  tribunals  in  England  established  by  the 
English  government  for  that  purpose.  When  by  the 
Revolution  there  ceased  to  be  a  mother  country  to  act 
as  arbitrator  and  judge  between  the  American  States, 
it  was  inevitable  that  their  political,  social,  and  eco- 
nomic beliefs  should  find  expression  in  a  system  of 
their  own  for  carrying  on  such  arbitrations  and  ad- 
judications. 

Having  thus  attempted  to  form  some  conclusion 
concerning  the  development  of  the  doctrine  of  juris- 
diction of  courts  over  states  as  a  matter  of  political, 
social  and  economic  belief,  it  becomes  necessary  to 
examine  the  experience  of  the  Americans  in  the  work- 


Jurisdiction  of  Courts  Over  States  75 


ing  of  institutions  which  culminated  in  the  establish- 
ment by  them  of  the  Supreme  Court  of  the  United 
States. 

It  may  be  objected  that  such  an  investigation  is 
without  practical  value  as  bearing  upon  the  institution 
of  the  proposed  Court  of  Arbitral  Justice,  because  the 
institutions  of  which  the  Americans  had  experience 
were  those  which  existed  under  a  political  union  formed 
by  England  and  the  Colonies  and  held  together  by  the 
power  of  England.  Such  institutions,  it  may  be  urged, 
have  no  resemblance  to  or  bearing  upon  the  institu- 
tions which  a  body  of  independent  states  would  find  it 
for  their  interests  to  form. 

It  must  indeed  be  admitted  that  the  tribunals  in 
England  which  settled  the  disputes  of  the  American 
Colonies  were  the  product  of  English  statesmanship 
supported  by  English  force,  and  that  these  institutions 
were  accepted  by  the  colonies  and  in  no  sense  created 
by  them.  At  the  same  time,  it  is  to  be  remembered 
that  all  unions  or  combinations  of  individuals  or  states 
arise  out  of  the  same  circumstances  and  have  the  same 
objects — they  are  for  the  common  defense  and  for  the 
general  welfare.  It  matters  little  from  what  standpoint 
each  of  the  parties  enters  upon  the  negotiations. 
Whether  they  start  from  a  position  of  assumed  equality 
or  from  a  position  of  assumed  inequality,  the  union  or 
combination  will  tend  'to  perfect  itself  by  conforming  to 
the  facts  as  they  exist,  and  the  institutions  of  the  union 
or  combination  will  tend  to  take  the  form  which  best 
suits  the  needs  of  all  the  parties.  In  spite,  therefore,  of 
the  fact  that  the  Supreme  Court  of  the  United  States 
had  its  origin  in  the  institutions  of  the  English  empire 
and  commonwealth  and  the  British  empire,  and  exists 
today  as  an  institution  of  the  American  Union,  it  by 
no  means  follows  that  American  experience  of  these 


76    The  American  Philosophy  of  Government 

institutions  may  not  be  of  value  at  this  time  to  the 
states  of  the  society  of  nations. 

In  the  English  realm  and  empire,  from  the  earliest 
times  until  the  Revolution  of  1641,  the  tribunal  known 
as  "the  King  (or  the  Queen)  in  Council"  played  the 
most  important  part.  From  1660  until  about  1770,  it 
had  a  settled  and  peculiar  jurisdiction,  as  opposed  both 
to  the  jurisdiction  of  the  body  known  as  the  Parliament, 
established  in  1295,  composed  of  King,  Lords,  and  Com- 
mons, and  to  that  of  the  ordinary  courts  of  justice  of 
the  realm.  The  King  in  Council  was  legally  the  King 
advised  by  his  Privy  Council.  This  council  was  com- 
posed of  men  selected  by  the  King  for  their  social  in- 
fluence and  their  expertness  in  statesmanship,  law,  and 
economics.  By  their  advice  the  King  made  treaties 
with  independent  states,  exercised  jurisdiction  over  an- 
nexed countries,  and  carried  on  the  government  of  the 
realm  according  to  customary  principles  and  according 
to  Parliamentary  acts. 

During  the  reign  of  Elizabeth,  the  government  of 
England  was  carried  on  almost  entirely  by  the  Queen 
in  Council.  Few  Parliaments  were  held,  and  the  ac- 
tion of  those  which  were  held  was  largely  devoted  to 
registering  the  decrees  of  the  Queen  in  Council  and 
levying  taxes  to  be  expended  as  the  Queen  in  Council 
might  direct. 

An  examination  of  the  charters  of  discovery  granted 
by  Queen  Elizabeth  to  Sir  Humphry  Gilbert  and  Sir 
Walter  Raleigh  shows  that  it  was  her  purpose,  had  colo- 
nies been  established  under  these  charters,  to  govern 
them  by  herself,  advised  by  her  Privy  Council.  Judg- 
ing from  the  system  pursued  by  Elizabeth  and  her  pre- 
decessors in  the  case  of  Ireland  and  Jersey,  there  would 
have  been  a  Governor  and  Privy  Council  in  each  of 
the  American  Colonies,  subordinate  to  and  in  corre- 


Jurisdiction  of  Courts  Over  States  77 

spondence  with  the  Queen  in  Council.  The  bond  of 
union  between  England  and  the  Colonies  would  have 
been  considered  to  arise  from  the  common  allegiance  of 
all  English-born  people,  and  their  descendants,  to  the 
person  of  the  reigning  monarch.  Under  this  system 
the  Colonies  and  their  citizens  would  have  been  subject 
to  the  Queen  in  Council  as  a  supreme  tribunal. 

The  system  of  government  by  councils  which  pre- 
vailed in  England  during  Elizabeth's  time  was  a  favor- 
ite system  at  that  time  throughout  Europe.  The  feudal 
system  was  on  the  point  of  giving  place  to  the  repre- 
sentative system,  but  during  the  last  half  of  the  six- 
teenth century  there  was  a  reaction  towards  the  feudal 
system.  Spain,  the  most  successful  colonizing  power  of 
that  day,  was  governed  by  councils.  Its  relations  with 
its  colonies  were  in  charge  of  a  specially  selected  and 
distinguished  body  of  men  who  formed  the  Council  of 
the  Indies,  which  was  assisted  by  a  subordinate  Council 
of  Trade.  A  similar  system  prevailed  in  Portugal.  In 
the  Empires  of  Venice  and  Genoa,  then  passing  into 
decay,  the  relations  with  the  oversea  colonies  and  trad- 
ing-posts had  been  in  charge  of  a  central  tribunal. 

When  James  VI  of  Scotland  came  to  the  throne  of 
England  as  James  I  in  1603,  after  the  death  of  Eliza- 
beth, a  new  situation  was  beginning  to  be  formed  on  the 
Continent  of  Europe.  Spain  and  Portugal,  claiming 
the  whole  world  outside  of  Europe  under  Papal  bull, 
were  declining,  and  the  northern  powers  of  the  Conti- 
nent under  the  lead  of  Henry  IV,  King  of  France,  were 
trying  to  arrange  a  European  Concert  to  regulate 
Europe  and  all  the  rest  of  the  world.  The  movement 
was  ostensibly  aimed  against  Spain  and  Austria,  but  it 
was  evident  that  any  Concert  of  the  Continental  powers 
must  inevitably  in  the  long  run  be  turned  against 
England.     It  became  necessary  for  England,  whose 


78    The  American  Philosophy  of  Government 

trade  was  already  almost  strangled  by  hostile  regula- 
tions of  Continental  powers,  to  gain  colonies  for  itself 
in  America  and  to  hold  them  against  any  possible 
Continental  coalition.  A  systematic  plan  of  coloniza- 
tion was  therefore  entered  upon  in  which  the  great 
lawyers  of  England,  among  them  Coke,  Bacon,  and 
Popham,  participated. 

Just  as  these  plans  were  being  prepared,  an  event 
occurred  in  England  which,  as  the  Colonial  documents 
and  literature  show,  had  a  profound  influence  on  the 
people  of  the  American  Colonies.  This  was  the  settle- 
ment of  a  dispute  between  England  and  Scotland  ac- 
cording to  a  decision  made  by  the  judges  of  England. 
When  King  James  became  King  of  both  countries,  the 
question  arose,  what  rights  the  citizens  of  the  two  states 
should  have  against  each  other  while  their  peoples  were 
thus  united  through  the  person  of  the  King.  Commis- 
sioners were  appointed  by  the  legislatures  of  the  two 
states,  and  an  agreement  was  reached  except  upon  the 
question  of  what  rights  the  citizens  of  Scotland  should 
have  in  England,  and  vice  versa.  In  1604,  the  English 
House  of  Commons  brought  the  negotiations  to  a  tem- 
porary close  by  insisting  that  the  rights  of  the  Scots  in 
England  should  be  such  only  as  they  were  entitled  to 
according  to  the  principles  of  law  and  established  pre- 
cedents. The  House  of  Lords  insisted  upon  an  arrange- 
ment for  naturalizing  in  England  by  statute  all  persons 
born  in  Scotland  after  the  union ;  it  being  agreed  that  all 
persons  born  before  the  union  were  aliens,  who  could  be 
naturalized  only  by  the  methods  applicable  to  aliens.  A 
great  hearing  of  the  question  was  had,  which  was  given 
the  form  of  a  conference  between  the  Lords  and  Com- 
mons of  England,  to  which  all  the  judges  of  England 
were  summoned  as  advisers  of  the  conference.  The 
effect  of  the  whole  arrangement  was  to  constitute  the 


Jurisdiction  of  Courts  Over  States  79 

judges  of  England  an  Extraordinary  Tribunal  to  de- 
termine judicially  the  dispute  between  England  and 
Scotland.  At  the  hearing  Sir  Francis  Bacon  acted  as 
leading  counsel,  and  prominent  lawyers  of  the  House  of 
Commons  argued  the  case  from  the  standpoint  of  the 
civil  law,  "the  law  of  nations  and  of  reason,"  the  history 
of  nations,  and  the  common  law.  All  the  cases  in  the 
English  year  books  and  reports  arising  out  of  England's 
connection  with  the  principalities  and  duchies  in  France 
and  the  Low  Countries,  with  Ireland,  and  with  Jersey 
and  Guernsey,  were  examined.  The  case  is  reported 
in  the  State  Trials  under  the  title  of  the  Case  of  the 
Postnati.  In  an  opinion  in  which  the  principles  of  law 
and  the  precedents  were  fully  discussed,  the  judges 
arrived  at  the  unanimous  conclusion  that  Scots  born 
after  the  accession  of  James  to  the  throne  of  England 
were  entitled  in  England  to  full  civil  rights  of  person 
and  property,  but  had  no  political  rights;  and  that 
Scots  born  before  the  union  were  aliens  in  England. 
Though  the  judges  in  their  opinions  necessarily  based 
themselves  on  English  law  and  precedents,  the  investi- 
gation of  counsel  and  the  reasoning  of  the  judges  took 
so  wide  a  range  that  the  principles  laid  down  were  really 
those  of  universal  law,  and  the  effect  of  the  decision 
was  to  recognize  a  supreme  common  law  governing  the 
relations  between  England  and  all  the  countries  politi- 
cally connected  with  her.  The  decision  of  the  judges 
was  accepted  by  the  people  of  England  and  Scotland, 
and  the  dispute  was  thus  judicially  settled.  A  test 
case  called  Calvin's  Case,  involving  the  same  questions 
as  the  Case  of  the  Postnati,  was  brought  two  years  later 
to  the  Court  of  King's  Bench,  and  was  heard  before 
all  the  judges,  the  decision  being  the  same.  By  reason 
of  the  nature  of  the  points  decided  in  the  Case  of  the 
Postnati,  and  the  manner  of  the  decision,  and  by  reason 


8o    The  American  Philosophy  of  Government 

of  the  fact  that  this  decision  did  in  fact  settle  the  diffi- 
culty between  England  and  Scotland,  the  Case  of  the 
Postnati  had  the  dignity  of  an  international  adjudica- 
tion and  illustrated  the  possibility  of  Courts  having 
jurisdiction  over  States. 

Incidentally,  the  judges  in  their  opinions  in  these 
cases,  stated  the  principles  which  in  the  past  had  gov- 
erned the  relationship  between  England  and  the  coun- 
tries subordinately  connected  with  her;  thereby  in  fact 
estabHshing  the  principles  upon  which  the  relationship 
between  England  and  the  American  Colonies  was  to 
rest.  The  King  in  Council  was  recognized  as  having  a 
superintending  legislative  power  and  jurisdiction  over 
all  countries  subordinately  connected  with  England,  to 
be  exercised  by  orders  in  council  or  by  writs.  The  Par- 
liament was  recognized  as  having  a  superintending 
legislative  power  over  such  countries  above  that  exer- 
cised by  the  King  in  Council,  this  power  being  exercised 
by  means  of  Acts  of  Parliament  in  which  the  colonies 
were  specially  named.  A  special  Act  relating  to  a 
country  outside  the  realm  of  England — which  was  nec- 
essarily not  represented  in  the  Parliament — could  be 
intelligently  framed  only  after  investigation  of  the  facts 
and  hearing  of  the  parties  concerned.  In  passing  such 
special  Acts,  therefore,  the  Parliament,  if  it  acted  rea- 
sonably and  conscientiously,  necessarily  acted  both  as 
a  tribunal  having  jurisdiction  over  such  countries  and 
as  a  legislature. 

When,  therefore,  the  English  colonization  of  America 
began,  in  1606,  not  only  were  the  minds  of  the  people 
of  England  habituated  to  the  idea  of  government 
through  councils  of  experts  sitting  as  tribunals  as  well 
as  legislatures,  but  they  had  just  had  an  object  lesson 
in  international  adjudication.  The  English  colonists 
of  America  had  moreover  special  cause  to  be  familiar 


Jurisdiction  of  Courts  Over  States 


8i 


with  the  Case  of  the  Postnati  and  Calvin's  Case,  for 
the  principles  laid  down  in  them  in  fact  formed  the 
unwritten  constitution  governing  the  relations  between 
England  and  the  American  Colonies.  A  permanent 
tribunal  in  England  exercising  jurisdiction  in  disputes 
between  England  and  the  Colonies,  or  between  one 
colony  and  another,  determining  their  rights  against 
each  other  according  to  sound  political,  legal,  social, 
and  economic  principles,  was  probably  regarded  by  all 
as  an  appropriate  means  for  maintaining  proper  rela- 
tions between  them.  It  was  of  course  impossible  at 
that  time  for  the  Colonies  to  be  united  with  England 
by  representation  in  Parliament,  and  such  a  tribunal 
was  the  only  practicable  bond  of  union  between  them. 
Such  a  tribunal  was  not  inconsistent  with  a  system  of 
local  self-government  in  the  Colonies;  indeed  it  de- 
pended for  its  success  upon  a  recognition  of  their  self- 
governing  statehood,  and  of  their  power  and  duty  to 
execute  the  judgments  of  the  tribunal  in  so  far  as  they 
appealed  to  the  reason  and  conscience  of  the  people  of 
the  Colonies  as  reasonably  necessary  and  just. 

By  the  Charter  of  1606,  James  I  claimed  all  North 
America  between  34°  and  45°, — that  is,  all  the  region 
between  what  is  now  South  Carolina  and  what  is  now 
Canada, — calling  it  "Virginia";  and  divided  it  into  two 
districts  overlapping  between  38°  and  41°,  one  of  which 
was  probably  intended,  to  be  a  northern  and  the  other  a 
southern  viceroyalty, — the  middle  line  falling  very  close 
to  what  was  later  on  "Mason  and  Dixon's  Line"  between 
the  Northern  and  Southern  States.  In  each  of  the  grand 
divisions  provision  was  made  for  an  English  Colony  with 
specified  boundaries.  The  local  government  of  each 
Colony  was  placed  in  charge  of  a  local  Council,  called  the 
"Council  of  the  First  (or  Second)  Colony,"  to  be  ap- 
pointed by,  and  to  act  under  the  instructions  of  the  King 


82    The  American  Philosophy  of  Government 

in  Council.  The  Charter  also  provided  for  a  Council  in 
England,  to  be  "  Council  of  Virginia. ' '  The  ultimate  and 
supreme  power  over  the  Colonies  was  recognized  as  vested 
in  the  whole  State  and  Government  of  England,  and  this 
power  was  to  be  executed,  so  far  as  the  Charter  shows, 
by  the  King  in  Council.  The  "Council  of  Virginia" 
was  given  jurisdiction,  subject  to  final  decision  of  the 
King  in  Council,  to  determine  disputes  between  the 
Colonies,  and  advise  the  King  concerning  the  general 
social  and  economic  situation;  the  Charter  providing 
that  this  Council  was  to  have  the  "superior  managing 
and  direction  only  of  and  for  all  matters  that  may  con- 
cern the  government,  as  well  of  the  several  Colonies,  as 
of  and  for  any  other  part  or  place  within  the  aforesaid 
precincts  of  four  and  thirty  and  five  and  forty  degrees." 
The  likeness  between  the  system  of  government 
estabhshed  by  this  Charter,  and  the  Spanish  system,  is 
apparent.  The  Council  of  Virginia  corresponded  to  the 
Council  of  the  Indies  and  the  Council  of  each  Colony 
to  the  local  Audiencia  in  each  of  the  Spanish  colonies 
which  conducted  the  local  government.  The  Charter 
made  no  provision  for  representative  Assemblies  in  the 
Colonies — in  this  respect  also  conforming  to  the  Span- 
ish system.  Some  basis  is  to  be  found  for  a  belief  that 
this  Charter  shows  Spanish  influence  in  the  fact  that 
England  and  Spain  were  then  in  close  relationship 
under  Treaty  of  1604,  and  that  Spanish  ideas  were 
prevalent  at  the  English  Court.  As,  however,  the 
Charter  was  drawn  by  the  most  eminent  English  law- 
yers, and  as  the  English  scheme  of  colonization  of 
America  was  strongly  opposed  by  Spain,  it  seems  more 
reasonable  to  believe  that  the  Council  of  Virginia  was 
a  development  of  the  ideas  underlying  the  English 
Privy  Council  than  that  it  was  based  on  any  foreign 
model. 


Jurisdiction  of  Courts  Over  States  83 

The  Charter  of  1606  proved  ineffective,  because  it 
did  not  induce  sufficient  emigration.  There  was  no 
precious  metal  to  produce  quick  returns  to  the  colonists. 
They  could  only  hope  for  the  slow  retturn  from  agricul- 
ture and  trade;  and  this  necessitated  the  use  of  large 
amounts  of  capital  and  systematic  operations  for  colo- 
nizing the  country  and  protecting  and  supplying  the 
colonists  until  they  could  become  self-supporting.  In 
1609,  the  "First  Colony"  referred  to  in  the  Charter  of 
1606  was  organized  as  a  colonizing  and  trading  joint- 
stock  corporation  called  the  Virginia  Company,  which 
was  authorized  to  colonize  and  govern  the  region  at 
present  included  within  Virginia  and  the  country  to 
the  westward.  The  Company  was  given  the  privilege 
of  the  general  and  local  government  of  the  country 
granted,  and  the  monopoly  of  its  trade.  The  governing 
board  of  the  Company  in  England  was  constituted  by 
the  Charter  the  "  Council  of  Virginia"  and  was  subordi- 
nate to  the  King  in  Council.  By  an  amendment  in 
161 1,  the  adventurers  were  allowed  to  sit  with  the 
Councillors,  and  the  meetings  were  called  **  Courts"  of 
the  Company.  Four  "Great  and  General  Courts"  in 
each  year  were  required  to  be  held  "for  the  handHng, 
ordering,  and  disposing  of  matters  and  affairs  of  greater 
weight  and  importance,  and  such  as  shall  or  may  in 
any  sort,  concern  the  weal  public  and  general  good  of  the 
said  Company  and  Plantation." 

This  Charter  was  unsatisfactory.  By  the  people  of 
England  it  was  objected  to  as  giving  to  the  Company 

I  a  monopoly;  the  King  regarded  it  as  too  democratic 
and  republican,  and  as  likely  to  lead  to  too  radical 
ideas  in  the  Colonies;  the  nobility  found  fault  with  it 
because  it  allowed  merchants  to  sit  in  one  of  the  King's 
councils. 
The  admission  of  merchants  to  membership  in  this 


84    The  American  Philosophy  of  Government 

council  was,  it  would  seem,  due  to  the  economic  neces- 
sities of  the  situation.  The  opening  of  the  sea-route  to 
India  and  America,  the  closing  of  the  Mediterranean 
to  the  Oriental  trade  by  the  Mohammedan  invasion  of 
what  is  now  Turkey,  the  consequent  ruin  of  Venice, 
and  the  decline  of  Spain  and  Portugal  through  extrava- 
gance and  bad  government,  had  made  the  English 
Channel  the  Mediterranean  of  the  world,  and  London, 
as  the  most  secure  port  on  the  Channel,  was  becoming 
the  metropolis.  England  required  a  permanent  eco- 
nomic connection  with  America,  in  order  that  raw 
material  might  be  secured  and  an  increased  market  for 
English  manufacturers  might  be  provided.  The  tri- 
bunal in  England  having  jurisdiction  over  the  relations 
of  the  American  Colonies,  in  order  to  be  efficient,  had 
to  be  so  organized  as  to  be  able  to  cope  with  economic 
as  well  as  with  social  and  political  questions.  The  sys- 
tem was  perfected  half  a  century  later,  by  the  institution 
of  a  Council  of  Trade,  subordinate  to  the  King  in 
Council,  having  charge  of  these  economic  relations. 

Under  the  Charter  of  1609,  the  local  government  of 
Virginia  took  on  a  democratic  and  republican  aspect. 
To  the  Governor  and  Council  appointed  by  the  King 
in  Council  was  added  in  1621,  by  consent  of  the  King 
in  Council,  a  representative  "House  of  Burgesses,"  all 
together  constituting  the  General  Assembly  of  Virginia. 
In  the  Ordinance  of  the  Company  establishing  this 
system  occurred  the  remarkable  provision  that  no  orders 
of  the  General  Courts  of  the  Company  should  bind  the 
Colony  unless  ratified  by  the  General  Assembly  of 
Virginia, — a  provision  which  left  to  the  General  Courts 
of  the  Company  what  was  essentially  a  power  of  adju- 
dication, and  gave  Virginia  the  power  of  executing  the 
judgments  of  the  Courts  of  the  Company  according  as 
these  judgments  were  approved  by  the  public  sentiment 


Jurisdiction  of  Courts  Over  States  85 

of  the  people  of  Virginia.  This  ordinance,  representing 
as  it  did  the  maximum  of  self-government  which  was 
ever  granted  by  England  to  any  of  the  Colonies,  was 
regarded  by  all  the  Colonies  as  a  fundamental  constitu- 
tion determining  the  relationship  not  only  between 
England  and  Virginia,  but  between  England  and  all  the 
Colonies. 

In  1620,  an  experiment  was  made  of  another  system, 
resembling  somewhat  that  of  the  Virginia  Company. 
A  colonizing  and  trading  corporation  of  forty  members 
with  power  of  self -perpetuation  by  the  name  of  "Coun- 
cil for  New  England,"  was  chartered  by  James  I,  with 
power  of  government  and  trade  monopoly  throughout 
North  America  from  40°  to  48°, — that  is,  approximately 
from  what  was  afterwards  "Mason  and  Dixon's  Line," 
to  the  mouth  of  the  St.  Lawrence.  The  meetings  of  the 
council  were  described  in  the  Charter  as  "Courts."  The 
Company,  which  was  at  the  same  time  "Council"  and 
a  "Court,"  thus  constituted  a  tribunal  in  England 
having  jurisdiction,  subject  to  the  King  in  Council,  of 
the  colonies  to  be  formed  in  this  great  region.  As  a 
corporation  it  was  subject  to  have  its  charter  forfeited 
for  cause  by  quo  warranto  proceedings ;  and  its  monopoly 
made  it  vulnerable.  The  opposition  of  Parliament  to 
monopolies  was  so  great  that  the  corporation  did  little 
more  than  make  grants  of  land. 

Charles  I,  upon  co'ming  to  the  throne  in  1625, 
abolished  the  Virginia  Company,  and  took  Virginia  un- 
der the  direct  government  of  himself  advised  by  his 
Privy  Council,  without  any  subordinate  council.  In 
1628  he  granted  a  Charter  to  the  Company  of  Massa- 
chusetts Bay,  empowering  it  to  colonize  the  region  sur- 
rounding what  is  now  the  city  of  Boston,  with  full 
powers  of  government  and  without  express  reservation 
of  control  by  the  King  in  Council  or  by  Parliament. 


86    The  American  Philosophy  of  Government 

The  meetings  of  the  Company  were  described  in  the 
Charter  as  "Courts,"  and  four  "Great  and  General 
Courts"  of  the  Company  were  to  be  held  in  each  year. 
It  was  not  specified  whether  the  Company  should  be 
located  in  England  or  in  Massachusetts  Bay. 

This  Charter  was  based  upon  principles  of  govern- 
ment inconsistent  with  the  Latin  theory  of  government 
held  by  Charles  I,  and  his  Privy  Council,  according  to 
which  the  binding  force  of  governmental  acts  was  de- 
rived from  the  King's  command,  and  so  evidently  made 
the  public  judgment  supreme  within  the  Colony,  that 
when  the  Company  removed  to  Massachusetts  Bay,  it 
became  specially  obnoxious  to  the  King  in  Council,  and 
the  charge  was  made  that  the  Charter  was  obtained 
*  'surreptitiously. ' ' 

In  1635,  the  Council  for  New  England  surrendered 
its  Charter  and  the  King  created  a  special  commission 
to  regulate  all  the  English  Colonies  in  America  and 
elsewhere,  composed  of  the  highest  clerical  and  lay 
officials  of  the  realm — William  Laud,  Archbishop  of 
Canterbury,  being  the  President.  This  commission  was 
invested  with  full  powers,  and  it  seems  to  have  been 
responsible  only  to  the  King  in  person.  It  was  expressly 
given  power  to  determine  all  disputes  between  the 
Colonies.    The  Letters  Patent  read,  in  this  respect : 


Farther,  be  it  known  that  we  constitute  you,  or  any  five 
or  more  of  you,  our  commissioners,  to  hear  and  determine, 
according  to  your  sound  discretions,  all  complaints  what- 
soever, whether  against  the  Colonies  themselves,  or  their 
Presidents  or  Governors,  either  at  the  instance  of  the  party 
aggrieved,  or  upon  information  concerning  injuries  done, 
.  .  .  and  to  summon  the  parties  before  you,  and  they 
having  been  heard,  ...  by  themselves  or  by  their  attor- 
neys, to  extend  to  them  full  and  complete  justice. 


Jurisdiction  of  Courts  Over  States  87 

This  tribunal  was  also  authorized  to  hear  and  deter- 
mine controversies  between  the  Colonies  and  England, 
their  powers  extending  to  the  revocation  of  "charters 
surreptitiously  or  unduly  obtained  or  prerogatives 
granted  on  terms  prejudicial  to  the  rights  of  the  Crown 
or  of  foreign  princes";  the  commission  being  required 
to  proceed  in  such  cases  **  according  to  the  law  and 
custom  of  our  realm  of  England."  It  was  this  tribunal 
which  directed  that  a  quo  warranto  suit  be  brought 
against  the  Massachusetts  Bay  Colony  to  forfeit  its 
Charter  on  the  ground  that  the  Charter  was  obtained 
surreptitiously  and  unduly  and  that  it  was  not  intended 
to  authorize  the  whole  government  of  the  Colony  to 
be  removed  to  America. 

The  arbitrary  methods  of  Archbishop  Laud  led  the 
Colonies  to  distrust  the  commission  as  formed,  but 
they  recognized  the  necessity  of  a  reasonable  judicial 
control  by  the  King  in  Council.  In  1638,  the  General 
Court  of  Massachusetts  Bay,  in  its  answer  to  the  de- 
mand of  the  commission  to  surrender  up  the  Charter 
for  cancellation,  declared  that  Massachusetts  Bay  was 
"ready  to  yield  all  due  obedience  to  our  Sovereign 
Lord  the  King's  Majesty,  and  to  your  Lordships  under 
him."  The  expression  "due  obedience"  or  "due  sub- 
jection" was  often  used  in  the  Colonial  documents  as 
describing  the  relation  of  the  Colonies  to  England,  to 
signify  that  they  regarded  themselves  as  subject  only 
to  the  power  of  England  duly  exercised, — that  is,  exer- 
cised to  the  extent  needful  for  the  common  good.  They 
regarded  themselves  as  free  states  or  commonwealths, 
and  based  their  subjection  to  the  reasonable  jurisdiction 
of  England  partly  on  their  consent,  partly  on  the  economic 
necessities  of  the  case,  and  partly  on  the  moral  compul- 
sion growing  out  of  their  special  relationship  toEngland 
and  their  general  relationship  with  the  rest  of  the  world. 


88    The  American  Philosophy  of  Government 

The  position  taken  by  the  General  Court  of  the 
Massachusetts  Bay  Colony  was  in  harmony  with  the 
prevailing  sentiment  in  England.  In  1640,  the  Parlia- 
ment by  an  act  declared  and  "regulated"  the  powers 
of  the  King  in  Council  and  defined  its  jurisdiction  as  a 
tribunal.    This  act  provided: 

That  neither  his  Majesty,  nor  his  Privy  Council,  have  or 
ought  to  have  any  jurisdiction,  power  or  authority,  by 
English  bill,  petition,  articles,  libel,  or  other  arbitrary  way, 
to  examine  or  draw  into  question,  determine  or  dispose  of 
the  lands,  tenements,  hereditaments,  goods  or  chattels  of 
any  of  the  subjects  of  this  kingdom;  but  that  the  same 
ought  to  be  tried  and  determined  in  the  ordinary  courts  of 
justice  and  by  the  ordinary  course  of  law. 

The  effect  of  this  statute  was  to  differentiate  the  King 
in  Council  from  the  ordinary  courts  of  justice  of  the 
realm  of  England  and  to  make  the  King  in  Council  an 
Extraordinary  Court  for  the  judicial  settlement  of  dis- 
putes arising  outside  of  the  realm  of  England  but  within 
the  English  empire.  In  the  exercise  of  this  extraordi- 
nary jurisdiction  it  acted  according  to  the  equity  of  the 
laws  of  England,  inasmuch  as  all  the  Colonial  charters 
provided  that  the  Colonial  law  should  be  not  incon- 
sistent with  the  law  of  England. 

In  1638,  the  people  of  the  town  of  Windsor,  Hartford, 
and  Wethersfield,  in  what  is  now  Connecticut,  without 
any  charter  from  England,  ''associated  and  conjoined" 
themselves  "as  one  public  state  or  commonwealth." 
In  their  articles  of  "combination  and  confederation," 
they  provided  for  two  "General  Assemblies  or  Courts" 
to  be  held  annually  and  to  be  composed  of  deputies  of 
the  towns.  The  whole  State  was  spoken  of  in  the  ar- 
ticles as  a  "Jurisdiction."  A  Governor  and  six  Assist- 
ants were  to  be  elected  and  were  to  have  power  "to 


Jurisdiction  of  Courts  Over  States  89 

administer  justice  according  to  the  laws  here  estab- 
lished, and  for  want  thereof  according  to  the  rule  of  the 
word  of  God."  It  was  provided  that  the  General  Court 
should  be  "for  the  making  of  laws  and  any  other  pub- 
lic occasion  which  concerns  the  good  of  the  Common- 
wealth,"— a  power  sufficiently  broad  to  enable  the 
General  Court  to  adjust  disputes  between  the  constitu- 
ent towns  and  to  make  treaties  with  their  neighbor 
"Commonwealths"  or  "Jurisdictions." 

In  the  Massachusetts  Bay  "Body  of  Statutes"  of 
1 64 1,  the  "Commonwealth"  of  Massachusetts  Bay  was 
spoken  of  as  a  "Jurisdiction." 

In  1643,  when  England  was  distracted  by  the  civil 
war,  the  Colonies  of  Massachusetts  Bay,  New  Ply- 
mouth, Connecticut,  and  New  Haven  found  themselves 
in  a  position  where  they  were  obliged  to  defend  them- 
selves from  external  attack  and  where  they  were  at  the 
same  time  in  danger  of  war  among  themselves  unless 
they  could  find  a  peaceful  way  of  settling  their  disputes. 
They  accordingly  entered  into  a  Confederation,  by  the 
name  of  "The  United  Colonies  of  New  England."  One 
of  the  Articles  of  Confederation  provided: 

If  any  of  the  Confederates  shall  hereafter  break  any  of 
these  present  articles,  or  be  any  other  way  injurious  to 
any  of  the  other  Jurisdictions,  such  breach  of  agreement, 
or  injury,  shall  be  duly  considered  and  ordered  by  the 
Commissioners  for  the  other  Jurisdictions,  that  both  peace 
and  this  present  Confederation  may  be  entirely  preserved 
without  violation. 

Before  tribunals  organized  according  to  this  pro- 
vision, several  disputes  between  the  Colonies  regarding 
boundaries  were  heard  and  determined.  The  case  of 
the  greatest  consequence  which  came  before  these  tri- 
bunals, however,  was  that  between  Massachusetts  and 


90    The  American  Philosophy  of  Government 

Connecticut  involving  the  right  of  Connecticut  to  im- 
pose duties  on  the  navigation  of  the  Connecticut  River, 
in  consideration  of  the  maintenance  by  Connecticut  of 
a  fort  at  the  mouth  of  the  river.  The  case  was  decided 
in  favor  of  Connecticut  and  was  twice  afterwards 
argued  on  rehearings  asked  by  Massachusetts.  Retalia- 
tion by  Massachusetts  finally  resulted  in  a  free  trade 
system  among  the  Confederates. 

On  November  3,  1643,  three  months  after  the  New 
England  Confederation  was  formed,  the  Lords  and 
Commons,  who  then  constituted  the  legislature  of 
England  under  a  provisional  government  practically 
republican  in  form,  passed  an  ordinance  establishing  a 
new  commission  with  full  jurisdiction  over  all  the 
English  colonies.  The  Earl  of  Warwick  was  named  as 
president  of  the  commission,  and  Sir  Henry  Vane,  John 
Pym,  and  Oliver  Cromwell  were  among  the  members. 
One  of  its  first  acts  was  to  grant  a  charter  to  Providence 
Plantations,  which  had  been  excluded  from  the  Con- 
federation on  account  of  the  strong  individualistic 
doctrine  of  the  settlers  there.  In  this  charter  the  com- 
mission asserted  its  jurisdiction  to  determine  disputes 
between  the  Colonies  by  a  clause  which  read: 

Always  reserving  to  the  said  Earl  and  Commissioners,  and 
their  successors,  power  and  authority  to  dispose  the  general 
government  of  that,  as  it  stands  in  relation  to  the  rest  of 
the  Plantations  in  America,  as  they  shall  conceive,  from 
time  to  time,  most  conducive  to  the  general  good  of  the 
Plantations,  the  honor  of  his  Majesty,  and  the  service  of 
the  State. 

This  commission,  and  its  successor,  the  Committee 
of  the  Council  of  State  for  the  Plantations,  established 
when  the  English  Commonwealth  was  instituted  in 
1649,  permitted  the  United  Colonies  of  New  England 


Jurisdiction  of  Courts  Over  States  91 

to  operate  under  their  Articles  of  Confederation  in 
subordination  to  the  supreme  power  of  the  Common- 
wealth; and  the  Confederation  continued  in  full  vigor 
until  the  restoration  of  Charles  II  in  1660. 

Under  Cromwell,  provision  was  made  for  determining 
the  economic  as  well  as  the  political  relations  of  the 
colonies  by  the  institution  of  a  Council  of  Trade,  which 
was  subordinate  to  the  Committee  of  the  Council  of 
State  for  the  Plantations.  The  Council  of  Trade  acted 
as  a  tribunal  of  first  instance  or  a  master  in  chancery, 
deciding  routine  matters  and  reserving  the  more  im- 
portant questions  for  the  decision  of  the  Committee  of 
the  Council  of  State  for  the  Plantations  and  later  of 
the  Lord  Protector  in  Council.  From  the  beginning  the 
Colonies  had  had  the  practice  of  sending  commis- 
sioners to  England  or  employing  agents  there  to  repre- 
sent their  interests  in  special  emergencies  before  the 
King  in  Council.  Massachusetts  Bay,  in  1637,  had 
sent  agents  to  represent  it  before  the  Laud  Commission. 
This  now  began  to  become  a  settled  custom,  but  it  was 
fifty  years  after  this  time  before  the  system  came  into 
full  operation. 

The  passage  of  the  Navigation  Act  in  1651,  by  the 
Parliament  of  the  Commonwealth,  brought  up  in  acute 
form  the  question  how  the  relations  between  England 
and  the  Colonies,  and  between  the  Colonies  individ- 
ually, ought  to  be  determined.  The  object  of  this  Act 
was  to  restrict  the  trade  of  the  Colonies  to  the  English 
market,  and  to  place  the  whole  carrying  trade  in  the 
hands  of  English  shipowners,  thus  giving  England  the 
monopoly  of  the  trade  of  the  Colonies.  This  action  was 
acquiesced  in  by  some  of  the  Colonies,  as  a  reasonable 
regulation  of  their  foreign  and  intercolonial  trade 
necessitated  by  the  circumstances.  Others  regarded  it 
as  evidencing  the  adoption  by  England  of  a  theory  of 


92    The  American  Philosophy  of  Government 

absolute  power  over  the  Colonies.  It  appeared  to  them 
to  show  that  England  had  accepted  the  "Colonial  Pact " 
theory  invented  by  Richelieu  a  few  years  before,  by 
which  the  claim  of  France  to  absolute  power  over  her 
colonies  had  been  concealed  under  the  pretext  that 
there  existed  a  Fundamental  Compact  between  France 
and  her  colonies  by  the  terms  of  which  the  colonies 
were  assumed  to  have  granted  to  France  a  monopoly 
of  their  trade  in  consideration  of  her  assumed  promise 
to  protect  them.  On  this  theory,  there  was  no  occasion 
for  a  tribunal  in  England  having  jurisdiction  over  the 
Colonies.  They  had  no  rights  against  England,  and 
were  bound  implicitly  to  obey  the  edicts  of  England. 
All  the  Colonies  moreover  objected  to  Acts  of  Parlia- 
ment which  purported  to  affect  them,  because  it  was 
evident  that  Parliament  was  not  organized  as  a  tribunal 
but  as  a  representative  of  territorial  districts  in  England. 
Upon  the  passage  of  the  Navigation  Act  in  1651,  Vir- 
ginia revolted  from  the  Commonwealth,  claiming  that 
the  Act  was  a  violation  of  the  principle  that  the  subjec- 
tion of  the  American  Colonies  was  to  a  proper  tribunal 
in  England,  and  that  the  Colonies  were  subject  to  no 
legislatures  except  their  own.  Commissioners  were  sent 
by  the  Commonwealth  Parliament  to  Virginia,  who, 
under  instructions,  succeeded  in  settling  the  contro- 
versy by  agreeing  to  Articles  of  Capitulation  in  which 
it  was  declared  that  Virginia  (and,  by  necessary  im- 
plication, all  the  other  Colonies)  owed  only  ''due 
obedience  and  subjection  to  the  Commonwealth  of 
England,"  and  that  the  "submission  and  subscription" 
of  Virginia  was  a  "voluntary  act"  on  her  part. 

This  great  constitutional  settlement  between  the 
Commonwealth  of  England  and  the  American  Colonies 
made  the  validity  of  the  Navigation  Act  and  of  all 
other  governmental  acts  of  England  relating  to  the 


I 


Jurisdiction  of  Courts  Over  States  93 

Colonies  depend  upon  whether  or  not  they  were  reason- 
able and  just  under  the  circumstances,  the  Colonies 
having  the  right,  at  least  in  extreme  cases,  to  determine 
the  question  of  reasonableness  and  justness  as  well  as 
England.  In  case  of  deadlock,  there  was  no  solution 
except  through  agreement  in  conference,  or  through 
arbitration,  or  through  judicial  decision  by  the  King  in 
Council,  or  through  war.  The  relations  between  Eng- 
land and  the  Colonies  and  between  the  Colonies  indi- 
vidually, under  this  settlement,  bore  a  close  resemblance 
to  those  of  states  which  are  subject  to  the  principles  of 
international  law. 

With  the  restoration  of  Charles  II  in  1660  and  the 
cessation  of  the  domestic  troubles  of  England,  a  syste- 
matic re9rganization  of  the  American  Colonies  was 
begun.  As  the  sytem  was  developed  during  the  century 
succeeding  his  accession,  three  general  objects  were 
pursued — the  establishing  of  direct  and  close  communi- 
cation between  each  colony  and  England ;  the  directing 
of  the  trade  of  each  towards  England  as  the  common 
market;  and  the  maintaining  of  a  permanent  political 
connection  between  all  parts  of  the  empire.  In  pursu- 
ance of  the  first  object  the  Dutch  and  Swedes  were 
dislodged  from  the  regions  about  the  Hudson  and  Dela- 
ware Rivers,  and  the  whole  sea  coast  from  what  is  now 
the  southern  boundary  of  Georgia  to  what  is  now  the 
northeastern  boundary  of  Maine  was  divided  so  that 
ultimately  there  were  formed  twelve  Colonies,  each 
having  a  good  harbor  from  which  ships  could  sail  direct 
to  England.  In  pursuance  of  the  second  object,  the 
Navigation  Act  was  continued  and  more  stringent  pro- 
visions were  made  for  carrying  it  into  effect,  it  being 
the  general  understanding,  at  least  in  the  Colonies, 
that  this  Act  was  an  exceptional  measure  necessitated 
by  the  circumstances  and  dependent  for  its  validity 


94    The  American  Philosophy  of  Government 

upon  its  reasonableness  and  necessity  and  upon  their 
consent  or  acquiescence.  In  pursuance  of  the  third 
object,  the  general  jurisdiction  of  the  relations  of  the 
Colonies  was  placed  in  charge  of  the  King  advised  by  a 
standing  committee  of  the  Privy  Council  known  as  the 
Committee  of  the  Privy  Council  for  Plantation  Affairs, 
which  was  itself  assisted  by  a  subordinate  judicial  and 
administrative  body  of  experts  known  as  the  Board  of 
Commissioners  for  Trade  and  Plantations.  This  sub- 
ordinate tribunal  was  appointed  by  the  King  in  Council 
and  was  specially  concerned  with  economic  questions, 
though  it  appears  to  have  had  a  general  jurisdiction. 
Important  matters,  particularly  those  involving  diplo- 
matic and  political  action  with  reference  to  the  Colonies, 
were  referred  by  this  subordinate  council  to  the  Com- 
mittee of  the  Privy  Council  for  Plantation  Affairs. 

During  the  last  years  of  the  reign  of  Charles  II  and 
during  the  reign  of  James  II  this  system  of  managing 
the  relations  with  the  Colonies  was  rendered  unpopular 
in  America  by  the  arbitrary  methods  pursued,  and  par- 
ticularly by  the  attempts  of  these  monarchs  to  cen- 
tralize the  system  by  the  abolition  of  the  corporate 
and  proprietary  charters  of  the  Colonies  and  by  the 
substitution  for  them  of  charters  converting  each  Col- 
ony into  a  royal  province,  ruled  by  a  Governor  and 
Council  appointed  by  the  King.  It  seems  probable 
that  it  was  intended  by  them  to  form  the  Colonies  into 
two  viceroyalties — a  northern  and  a  southern — com- 
posed of  provinces ;  the  dividing  line  being  that  of  40°. 
When  this  plan  was  abandoned,  various  schemes  for 
uniting  the  Colonies  under  a  Governor  General  and  a 
General  Council  appointed  by  the  King  in  Council 
were  agitated.  William  Penn,  who  in  1693  had  pub- 
lished a  plan  for  uniting  Europe  under  a  general  gov- 
ernment, proposed  in  1697  to  the  English  Government 


I 


I 


Jurisdiction  of  Courts  Over  States  95 

a  plan  for  uniting  the  American  Continental  Colonies 
under  a  general  government,  subject  to  the  supremacy 
of  England.  All  plans  for  a  union,  however,  failed,  and 
until  shortly  before  the  American  Revolution,  the  King 
in  Council  was  the  bond  of  union  between  England  and 
the  Colonies  and  between  each  Colony  and  all  the  others. 

In  1700,  the  Commissioners  for  Trade  and  Planta- 
tions recommended  that  the  practice  of  having  agents 
in  London  be  adopted  by  all  the  Colonies,  and  most  of 
them  thereafter  adopted  the  practice.  The  Colony 
agents  occupied  a  relationship  to  Parliament  somewhat 
similar  to  that  of  a  delegate  without  power  to  speak  or 
vote,  or  even  to  sit  in  the  body,  yet  recognized  by  com- 
mittees and  in  some  cases  called  to  the  bar  of  the  House 
of  Commons  to  present  the  views  of  the  Colonies.  As 
respects  the  King  in  Council,  their  relationship  was 
semi-diplomatic.  As  respects  the  Commissioners  for 
Trade  and  Plantations,  their  position  was  essentially 
that  of  attorneys  in  England  for  the  Colonies.  Thus 
the  whole  governmental  establishment  of  Great  Britain 
stood  in  the  relation  of  a  supreme  tribunal  for  the  Colo- 
nies rather  than  a  supreme  legislature.  Even  Acts  of 
Parliament  were  regarded  as  deriving  their  binding 
force  from  the  acquiescence  of  the  Colonies  in  them  as 
necessary  and  just  regulations  for  the  common  defense 
and  general  welfare. 

The  merger  of  England  and  Scotland  in  1707,  by 
which  was  formed  the  United  Kingdom  of  Great  Brit- 
ain, brought  various  new  ideas  and  influences  to  bear 
upon  the  relations  between  the  Colonies  and  the  mother 
country;  but  under  the  British  empire  the  system 
whereby  the  King  in  Council  acted  as  the  bond  of 
union  was  not  essentially  changed.  During  the  decade 
between  1730  and  1740,  the  system  probably  obtained 
its  highest  degree  of  perfection  and  its  greatest  success. 


96    The  American  Philosophy  of  Government 

From  about  the  year  1700  until  shortly  before  the 
Revolution,  the  King  in  Council  was  both  the  su- 
preme political  tribunal  of  the  empire  and  the  supreme 
court  of  appeals  of  the  empire.  Besides  the  political 
committee  already  mentioned — the  Committee  of  the 
Privy  Council  for  Plantation  Affairs, — there  existed  a 
judicial  committee  known  as  the  Committee  for  Ap- 
peals. This  latter  committee  had  jurisdiction  of  appeals 
from  the  supreme  courts  of  the  Colonies.  As  appears 
from  the  statement  of  Lord  Mansfield  in  the  great  case 
of  Campbell  v.  Hall,  decided  in  the  King's  Bench  in 
1774,  it  was  the  law  that  the  King  in  Council  could  do 
nothing  as  respects  the  Colonies  which  was  "contrary 
to  fundamental  principles" ;  from  which  it  appears  that 
it  was  the  duty  of  the  King  in  Council,  in  exercising 
jurisdiction  over  the  Colonies,  to  recognize  and  regard, 
both  in  its  political  and  its  judicial  action,  the  funda- 
mental rights  of  the  individual  to  life,  liberty,  and 
property.  Disputes  between  the  Colonies,  or  in  which 
a  Colony  or  Great  Britain  was  involved,  were  within 
the  jurisdiction  of  the  King  advised  by  the  Committee 
of  the  Privy  Council  for  Plantation  Affairs,  who  ar- 
ranged the  method  of  trial  in  each  case. 

Several  cases  involving  the  boundaries  between  Colo- 
nies were  settled  between  1700  and  1770  by  the  political 
committee  of  the  King  in  Council.  One  of  these  was 
that  which  arose  in  1736  between  Maryland  and  Penn- 
sylvania in  regard  to  a  part  of  the  region  which  is  now 
Delaware.  After  much  trouble  between  the  border 
populations  and  many  ineffectual  attempts  of  the  local 
governments  to  adjust  the  matter,  the  dispute  came  to 
the  King  in  Council  in  1750.  As  it  appeared  that  the 
controversy  arose  out  of  an  agreement  between  the 
Lords  Proprietors,  who  were  within  the  jurisdiction  of 
the  English  courts  by  reason  of  their  residence  in  Eng- 


Jurisdiction  of  Courts  Over  States  97 

land,  the  King  in  Council  acquiesced  in  a  plan  whereby 
a  suit  in  chancery  for  specific  performance  of  the  agree- 
ment and  for  the  settlement  of  boundaries  and  the 
quieting  of  title  was  to  be  brought  by  the  Proprietor  of 
Pennsylvania  against  the  Proprietor  of  Maryland  in 
the  English  court  of  chancery,  the  right  to  jurisdiction 
over  the  region  in  question  to  be  settled  by  order  in 
council  according  to  the  decision.  The  suit,  by  the 
title  of  Penn  v.  Lord  Baltimore,  was  accordingly 
brought,  and  was  heard  and  adjudicated  by  Lord 
Chancellor  Hardwicke.  Upon  report  of  the  decision 
of  the  court  of  chancery  to  the  King  in  Council,  an 
order  in  council  was  made  in  conformity  with  the  de- 
cision, establishing  the  right  of  Pennsylvania  to  juris- 
diction over  the  region  in  dispute. 

In  granting  a  motion  of  the  defendant  to  make  the 
Attorney  General  a  party.  Lord  Hardwicke  said 
(Ridgeway,  332): 

This  is  a  question  between  feudatory  Lords,  Proprietors 
of  Provinces,  and  concerning  not  only  their  private  interest, 
but  the  rights  of  government  and  the  rights  of  private 
persons.  .  .  .  The  disputes  of  private  persons  in  the 
Provinces  are  determined  in  the  courts  of  the  Province,  on 
which  a  writ  of  error  by  way  of  appeal  lies  before  the  King 
in  Council.  Therefore  questions  between  Proprietary 
Lords,  in  analogy  to  the  ancient  law  of  the  Marches,  must 
be  determined  before  the  King  in  Council.   .    .    . 

If  .  .  .  Proprietary  Lords  are  to  alter  the  bounds  of 
their  Provinces  without  the  privity  and  consent  of  the 
Crown,  by  whom  alone  such  powers  are  vested,  directed 
and  disposed,  consider  the  inconveniences  that  must  follow; 
this  is  no  less  than  transferring  lands  into  different  jurisdic- 
tions, legislations,  etc.,  you  subject  the  people  to  different 
government,  different  assemblies,  laws,  courts,  taxes,  etc., 
to  which  they  never  assented  by  their  delegates. 
7 


98    The  American  Philosophy  of  Government 

Delivering  the  opinion  on  final  hearing  (i  Vesey  Sr., 
444),  Lord  Hardwicke  said: 

This  cause  [is]  for  the  determination  of  the  right  and 
boundaries  of  two  great  Provincial  Governments  and  three 
Counties;  of  a  nature  worthy  the  judicature  of  a  Roman 
Senate  rather  than  of  a  single  Judge;  and  my  consolation 
is,  that  if  I  should  err  in  my  judgment,  there  is  a  judicature 
equal  in  dignity  to  a  Roman  Senate  that  will  correct  it. 

It  is  certain  that  the  original  jurisdiction  in  cases  of  this 
kind  relating  to  boundaries  between  provinces,  the  dominion 
and  proprietary  government,  is  in  the  King  and  Council; 
and  it  is  rightly  compared  to  the  cases  of  the  ancient  Com- 
motes and  Lordships  Marches  in  Wales;  in  which  if  a  dis- 
pute is  between  private  parties  it  must  be  tried  in  the 
Commotes  or  Lordships,  but  in  those  disputes  where  neither 
had  jurisdiction  over  the  other,  it  must  be  tried  by  the 
King  and  Council;  and  the  King  is  to  judge,  though  he 
might  be  a  party;  this  question  often  arising  between  the 
Crown  and  one  Lord  Proprietor  of  a  Province  in  America; 
so  in  the  case  of  the  Marches  it  must  be  determined  in  the 
King's  court,  who  is  never  considered  as  partial  in  these 
cases;  it  being  the  judgment  of  his  judges  in  [the  King's 
Bench]  and  chancery.  So  where  before  the  King  in  Council 
the  King  is  to  judge,  and  is  no  more  to  be  presumed  partial 
in  one  case  than  in  another. 

Another  case  of  disputed  boundaries  which  came  be- 
fore the  King  in  Council  for  settlement  was  that  of 
New  Hampshire  against  Massachusetts.  There  being 
in  this  case  no  Lords  Proprietors,  of  whose  persons  the 
English  courts  might  have  jurisdiction,  and  no  agree- 
ment,— the  case  arising  under  the  Charters  of  the  Colo- 
nies,— the  King  in  Council  ordered  a  reference  of  the 
case  to  a  commission  in  America  composed  of  twenty 
persons,  who  were  to  be  the  five  eldest  councillors  of 


I 


Jurisdiction  of  Courts  Over  States  99 

the  Colonies  of  New  York,  New  Jersey,  Nova  Scotia, 
and  Rhode  Island,  any  five  being  a  quorum,  and  their 
decision  being  reviewable  by  the  King  in  Council.  The 
Massachusetts  Assembly  wished  the  reference  to  be  to 
"wise  disinterested  persons"  to  be  chosen  equally  by 
or  in  behalf  of  the  parties,  those  in  behalf  of  Massa- 
chusetts "to  be  chosen  by  the  Assembly  of  that  Prov- 
ince out  of  the  neighboring  governments";  but  this 
request  was  denied  and  the  commissioners  were  named 
by  order  in  council. 

About  the  year  1755,  the  system  began  to  break  down. 
In  part  this  was  no  doubt  due  to  the  recrudescence  of 
autocratic  and  absolutist  ideas  throughout  the  Euro- 
pean world.    In  part  it  was  probably  also  due  to  the 
necessities  of  international  trade.    The  close  and  con- 
tinuous  contact  of  British  traders   and  government 
officials  with  the  peoples  of  the  Orient  and  the  tropics 
who  understood  no  governmental  power  which  was  not 
absolute,  had  led  the  British  government  to  claim  and 
assert  absolute  power  over  these  peoples,  and  it  doubt- 
less appeared  to  British  statesmen  that  to  recognize 
the  American  Colonies  as  subject  only  to  a  jurisdiction 
on  the  part  of  Great  Britain  was  inconsistent  with  the 
exercise  of  the  absolute  power  which  it  seemed  necessary 
to  assert  in  dealing  with  Oriental  and  tropical  peoples. 
However  this  may  be,  Preat  Britain  about  the  year 
1755  began  to  advance  the  claim  that  it  had  absolute 
power  throughout  the  empire,  with  the  right  to  mo- 
nopolize the  trade  of  all  the  subordinate  parts  and  to 
tax  them  for  the  general  defense  and  welfare ;  the  excuse 
for  the  claim  of  absolute  power  being  the  assumed  duty 
of  Great  Britain  to  protect  all  parts  of  the  empire. 
This  system,  called  in  France,  as  has  been  said,  the 
system  of  le  Facte  Colonial,  was  in  England  called  "the 
Mercantile  System." 


100  The  American  Philosophy  of  Government 

The  war  between  Great  Britain  and  France  for  the 
ten  years  from  1753  to  1763,  which  was  largely  fought 
on  American  soil  and  in  which  British  and  American 
soldiers  served  side  by  side,  delayed  and  concealed  the 
carrying  out  of  the  new  policy.  The  British  and  Ameri- 
cans fraternized  and  good  feeling  reigned.  The  acqui- 
sition of  Canada  by  Great  Britain  as  the  result  of  the 
war,  however,  brought  matters  to  a  head.  British 
America,  instead  of  consisting  of  a  row  of  seaboard 
colonies  inhabited  by  British  settlers,  with  direct  com- 
munication from  each  by  sea  to  Great  Britain,  became 
a  great  region  into  which,  through  the  St.  Lawrence 
and  the  Mississippi,  French  and  Spanish  influences  had 
penetrated,  and  containing  a  great  body  of  uncivilized 
aboriginal  inhabitants.  At  one  stroke,  the  old  system 
of  government  was  made  impossible,  and  a  new  situa- 
tion created  which,  as  it  seemed  to  British  statesmen 
at  least,  could  be  met  only  by  the  exercise  of  absolute 
power. 

Immediately  a  system  of  absolutism  was  put  in 
force.  By  edict  of  the  King  in  Council  in  1763,  the 
western  bounds  of  the  old  Colonies  were  limited  to  the 
Allegheny  Mountains,  and  the  whole  of  Canada  (which 
included  the  Northwest  Territory)  placed  under  the 
government  of  the  Crown.  In  1764,  the  Colonies  were 
taxed  by  Act  of  Parliament  for  the  general  purposes  of 
the  empire,  both  internally  by  a  Stamp  Act  and  ex- 
ternally by  tariff  duties  on  goods  imported  into  the 
Colonies.  When  the  Stamp  Act  was  repealed.  Great 
Britain  by  a  Declaratory  Act  of  ParHament  asserted 
its  absolute  power  in  the  empire.  By  this  Act,  it  was 
declared  that  the  Parliament  of  Great  Britain  "had, 
hath,  and  of  right  ought  to  have  full  power  and  au- 
thority to  make  laws  and  statutes  of  sufficient  force  and 
validity  to  bind  the  colonies  and  people  of  America, 


Jurisdiction  of  Couits  Over  States  '   '  ioi 

subjects  of  the  Crown  of  Great  Britain,  in  all  cases 
whatsoever." 

The  Americans  stood  for  the  old  system.  They  were 
willing  to  recognize  Great  Britain  as  having  jurisdiction 
over  the  Colonies  as  free  states,  reserving  their  right 
of  judgment,  at  least  in  extreme  cases,  for  the  protec- 
tion of  their  honor  and  dignity-and  for  their  self-preser- 
vation. They  acknowledged  the  supremacy  of  Great 
Britain  in  reasonably  and  justly  regulating  the  common 
affairs  of  the  states  of  the  empire,  particularly  in  regu- 
lating the  intercolonial  commerce  and  the  foreign  com- 
merce of  the  empire  and  of  all  its  constituent  states. 
They  considered  that  this  jurisdiction  ought  to  be  exer- 
cised by  a  properly  constituted  tribunal  in  Great  Britain 
of  which  the  King  should  be  the  head,  and  they  were 
even  willing  to  conform  to  acts  of  Parliament  passed  in 
the  reasonable  exercise  of  this  jurisdiction;  but  they 
would  not  accept  even  a  theoretical  claim  of  absolute 
power  over  them,  however  benevolent  might  be  the 
despotism. 

The  issue  raised  by  the  Stamp  Act,  the  Declaratory 
Act,  and  the  Tea  Act,  was  whether  Great  Britain  had 
legally  unlimited  power  over  the  colonies  as  their  su- 
preme absolute  legislature  or  whether  it  had  a  legally 
limited  power — that  is,  a  jurisdiction  over  them — as 
their  supreme  tribunal  and  supreme  executive  legisla- 
ture. The  Americans  at  first  tried  to  find  a  legal  limita- 
tion of  the  powers  of  Great  Britain  in  the  Colonial 
Charters  and  in  the  British  Constitution,  but  failed  to 
make  out  a  complete  case.  The  charters  were  acts  of 
the  British  Crown  and  recognized  the  power  of  Parlia- 
ment without  mentioning  conditions  or  limitations, 
and  the  only  doctrine  of  the  British  Constitution  which 
could  be  applied  was  that  which  asserted  the  injustice 
of  taxation  without  representation — a  doctrine  which 


I02  The  American  Philosophy  of  Government 

had  in  fact  no  application,  because  the  Americans  re- 
fused to  be  represented  in  a  Parliament  three  thousand 
miles  away  and  the  British  refused  to  allow  such  a 
representation. 

Burke  declared  that  the  British  empire  of  that  day 
could  not  be  constituted  on  the  basis  that  Great  Britain 
was  essentially  the  supreme  tribunal  of  the  empire. 
No  peace  in  the  British  empire  was  possible,  he  asserted, 
in  his  Speech  on  Conciliation,  which  was  to  "depend 
upon  the  juridical  determination  of  perplexing  ques- 
tions, or  the  precise  marking  of  the  shadowy  boundaries 
of  a  complex  government."  Great  Britain,  or  Great 
Britain  and  the  American  Colonies  integrated  in  a 
common  representative  Parliament,  he  asserted  in  his 
Speech  on  American  Taxation,  must  of  necessity  exer- 
cise absolute  power  in  the  empire. 

"The  Parliament  of  Great  Britain,"  he  said,  "sits  at  the 
head  of  her  extensive  empire  in  two  capacities :  One  as  the 
local  legislature  of  this  island,  providing  for  all  things  at  home 
immediately  and  by  no  other  instrument  than  the  executive 
power.  The  other,  and  I  think  her  nobler  capacity,  is  what 
I  call  her  imperial  character,  in  which,  as  froni  the  throne  of 
Heaven,  she  superintends  all  the  several  inferior  legislatures, 
and  guides  and  controls  them  all  without  annihilating  any. 
...  It  is  necessary  to  coerce  the  negligent,  to  restrain 
the  violent,  and  to  aid  the  weak  and  deficient,  by  the  over- 
ruling plenitude  of  her  power.  She  is  never  to  intrude  into 
the  place  of  others,  whilst  they  are  equal  to  the  common 
duties  of  their  institution.  But  in  order  to  enable  Parlia- 
ment to  answer  all  these  duties  of  provident,  and  beneficent 
superintendence,  her  powers  must  be  boundless.  Such,  sir, 
is  my  idea  of  the  Constitution  of  the  British  empire  as 
distinguished  from  the  Constitution  of  Britain. 

Burke's   Speech  on  American  Taxation  closed  the 
issue  between  Great  Britain  and  America.    From  that 


Jurisdiction  of  Courts  Over  States         103 

moment  the  Continental  Congress  realized  that  they 
were  called  upon  to  decide  a  single  momentous  ques- 
tion— ^for  Burke's  plan  of  integrating  Great  Britain  and 
the  Colonies  in  a  common  representative  Parliament 
was  recognized  as  wholly  impracticable — which  was, 
whether  the  American  Colonies  should  remain  a  part 
of  the  British  empire  on  the  understanding  that  Great 
Britain's  power  in  the  empire  should  thereafter  be  a 
power  to  command  instead  of  a  power  to  lead  the  Colo- 
nies in  judgment,  or  whether  they  should  declare  them- 
selves independent  states  and  organize  a  political  union 
independent  of  Great  Britain  and  the  British  empire, 
in  which  their  political  ideas  should  be  applied.  If 
they  took  the  latter  course,  it  was  necessary  to  state 
reasons  which  would  appeal  to  the  civilized  world  why 
Great  Britain  sjiould  not  exercise  absolute  power  in 
the  empire,  for  the  doctrine  of  Great  Britain  was  the 
accepted  doctrine  of  Europe.  It  was  useless  for  such 
a  purpose  to  talk  of  rights  under  the  Colonial  charters 
or  under  the  British  Constitution.  It  was  necessary 
for  them  to  base  themselves  on  universal  and  funda- 
mental principles  and  to  commit  the  American  States 
forever  to  the  principles  announced. 

The  Continental  Congress  was  equal  to  the  emer- 
gency. By  the  Declaration  of  Independence,  the  Ameri- 
can Colonies,  as  free,  independent,  and  united  states, 
denied  the  claim  of  Great  Britain  to  exercise  absolute 
power  in  the  British  empire  by  asserting  as  a  universal 
doctrine  that  supreme  power  in  civilized  society  is 
limited  by  "the  laws  of  nature  and  of  nature's  God," 
and  that  the  function  of  all  governments  is  to  exercise 
jurisdiction  under  this  law  for  the  purpose  of  "securing" 
to  each  individual  those  "unalienable  rights"  with 
which  all  men  are  endowed  by  their  Creator  for  their 
self-protection  and  self-preservation — called  in  the  Dec- 


104  The  Amencan  Philosophy  of  Government 

laration  the  rights  of  "life,  liberty,  and  the  pursuit  of 
happiness" — and  to  which  all  are  equally  entitled  by 
reason  of  the  creation  of  all  men  by  the  common  Crea- 
tor. The  binding  force  of  all  acts  of  government  was 
held  to  arise  from  the  exercise  of  this  jurisdiction  by 
the  government  and  from  the  acquiescence  of  the  gov- 
erned, as  beings  endowed  with  reason  and  conscience, 
in  the  necessary  and  just  judgments  of  the  government, 
made  for  the  purpose  of  securing  the  fundamental 
rights  of  the  individual. 

The  Declaration  of  Independence  was  also  a  Decla- 
ration of  Union.  By  laying  down  these  principles  of 
government,  it  had  the  negative  effect  of  eliminating 
Great  Britain  as  the  supreme  government  of  the  Colo- 
nies; by  asserting  the  union  of  the  American  States  to 
support  these  principles,  it  had  the  affirmative  effect 
to  commit  the  individual  States  and  the  United  States 
to  the  principles  of  government  which  it  declared. 

Accepting  the  principle  that  the  supreme  power  of 
government  is  the  power  to  judge,  it  follows  from  the 
fact  that  each  state  must  necessarily  have  relations 
with  its  own  citizens  and  with  persons  and  states  exter- 
nal to  itself,  that  if  a  state  assumes  to  finally  determine 
these  relations,  it  acts  as  a  judge  in  its  own  cause.  By 
the  Declaration  of  Independence,  the  American  Union 
acted  as  a  judge  in  its  own  cause  in  declaring  the  politi- 
cal connection  between  Great  Britain  and  the  Colonies 
to  have  been  dissolved  by  the  acts  of  Great  Britain. 
The  Americans  based  their  judgment  on  the  ground 
that  the  action  of  Great  Britain  was  in  violation  of  the 
fundamental  rights  of  the  individual.  Recognizing, 
however,  the  danger  to  the  peace  of  the  world  from 
states  acting  as  judges  in  their  own  causes,  they  de- 
clared, in  the  Declaration,  that  whenever  states  so  act, 
"a  decent  respect  to  the  opinions  of  mankind  requires 


Jurisdiction  of  Courts  Over  States         105 

that  they  should  declare  the  causes  which  impel  them." 
Before  the  Revolution,  the  American  Colonies, 
though  they  regarded  themselves  as  free  states  or  com- 
monwealths, were  willing  to  have  the  disputes  between 
themselves  and  with  the  mother  country  settled  by 
the  King  in  Council,  though  that  was  a  tribunal  of  the 
mother  country  and  was  open  to  the  objection  that  it 
was  a  judge  in  its  own  case.  Because  that  tribunal 
was  composed  of  men  trained  in  political,  social, 
and  economic  judgment  and  was  headed  by  the  King, 
who  was  by  his  office  bound  to  be  impartial,  they 
accepted  and  executed  its  adjudications. 
Burke,  in  his  Speech  on  Conciliation,  said : 

We  are,  indeed,  in  all  disputes  with  the  Colonies,  by  the 
necessity  of  things,  the  judge.  But  I  confess  that  the 
character  of  judge  in  my  own  cause  is  a  thing  that  frightens 
me.  Instead  of  filling  me  with  pride,  I  am  exceedingly 
humbled  by  it.  I  cannot  proceed  with  a  stern,  assured, 
judicial  confidence,  until  I  find  myself  in  something  more 
like  a  judicial  character.  I  must  have  these  hesitations  as 
long  as  I  am  compelled  to  recollect  that,  in  my  little  read- 
ing upon  such  contests  as  these,  the  sense  of  mankind  has 
at  least  as  often  decided  against  the  superior  as  the  subordi- 
nate power. 

The  humiHty  which  Burke  regarded  as  necessary  in 
one  who  is  called  upon  to  be  a  judge  in  his  own  cause 
would  seem  to  be  as  likely  to  create  a  bias  in  him 
favorable  to  his  adversary  as  pride  would  create  in 
favor  of  himself.  The  only  reasonable  means  by  which 
bias  can  be  avoided  by  individuals,  peoples  or  states, 
whether  the  judgment  be  required  to  be  given  in  one's 
own  cause  or  in  the  cause  of  others,  would  seem  to  be 
training  and  education  in  judgment,  and  an  apprecia- 
tion of  the  truth  which  Burke  stated,  that  every  judg- 


io6   The  American  Philosophy  of  Government 

ment  will  ultimately  be  reviewed  by  "the  sense  of 
mankind,"  which  will  "as  often  decide  against  the 
superior  as  the  subordinate  power." 

Upon  the  promulgation  of  the  Declaration  of  Inde- 
pendence the  Congress  regarded  itself  as  the  successor 
of  the  King  in  Council.  Until  the  Articles  of  Confed- 
eration were  adopted,  it  exercised  the  powers  which  had 
been  exercised  by  the  King  in  Council  over  the  Colonies 
previous  to  the  Declaration.  By  the  Articles  of  Con- 
federation, these  powers  were  reduced  to  writing  and 
given  the  sanction  of  a  mutual  agreement  of  the  States. 
As  the  King  in  Council  had  been  recognized  as  "the 
last  resort,  on  appeal,"  in  disputes  between  the  Colo- 
nies, the  Articles  of  Confederation  made  the  Congress 
a  tribunal  of  the  same  kind,  for  the  same  purpose,  and 
authorized  it  to  act,  as  the  King  in  Council  had  done, 
by  means  of  a  tribunal  instituted  in  each  case  under 
its  auspices. 

In  the  Constitution,  the  people  of  the  United  States 
and  the  States  of  the  Union  divided  between  the  Con- 
gress, the  President,  and  the  Supreme  Court  the  powers 
granted  by  the  Articles  of  Confederation  to  the  Congress 
of  the  Confederation,  and,  in  addition,  granted  to  the 
Congress  the  power  to  legislate  in  execution  of  the 
powers  granted  to  it.  They  also  granted  to  Congress 
the  power  to  regulate  by  legislation  the  interstate  and 
foreign  commerce  of  the  United  States.  To  the  Su- 
preme Court  naturally  fell  the  function  of  determining 
disputes  between  the  States  of  the  Union,  and  the 
remarkable  provision  was  added  that  foreign  States 
might  avail  themselves  of  the  jurisdiction  of  the  Su- 
preme Court  if  they  had  disputes  with  States  of  the 
Union.  This  provision  was  perhaps  suggested  by  the 
fact  that  the  American  Colonies,  though  holding  them- 
selves to  be  free  states  in  some  respects  foreign  to  Great 


Jurisdiction  of  Courts  Over  States         107 

Britain,  had  appeared  before  the  King  in  Council  as 
plaintiffs  and  defendants  and  had  found  it  an  impartial 
tribunal,  though  it  was  a  national  tribunal  of  Great 
Britain.  The  Constitution  preserved  the  dignity  of 
the  United  States  and  of  the  States  by  recognizing 
their  rights  to  act  as  judges  in  their  own  causes,  if  they 
saw  proper,  as  respects  claims  of  individuals  against 
them.  Inasmuch  as  the  Supreme  Court  was  granted 
only  the  "judicial  power"  of  the  United  States,  its 
jurisdiction  was,  it  would  seem,  limited  to  the  decision 
of  cases  which  are  of  such  a  nature  as  to  be  capable 
of  judicial  settlement.  Opportunity  was  provided  for 
settling  disputes  between  States  by  conference  or  arbi- 
tration by  the  provision  of  the  Constitution  which 
recognized  the  right  of  the  States  to  enter  into  treaties 
or  contracts  with  each  other  by  consent  of  the  Congress ; 
and  if  there  be  disputes  between  States  of  the  Union 
which  are  not  capable  of  judicial  settlement,  the  States 
involved  may,  it  would  seem,  establish  in  each  case  of 
dispute,  by  consent  of  Congress,  a  political  tribunal  for 
the  settlement  of  the  dispute. 

It  will  have  been  noticed,  in  the  course  of  this  inves- 
tigation of  the  process  of  the  development  of  the 
American  doctrine  of  jurisdiction  of  courts  over  States 
that  the  fundamental  political  belief  of  the  people  of 
the  American  colonies  and  of  the  United  States  has 
always  been  that  thete  exists  a  supreme  universal  law 
governing  the  actions  of  States,  which  secures  to  each 
individual  his  right  of  self -protection  and  self-preserva- 
tion, and  that  the  actions  of  states,  nations,  and  empires, 
are  void  so  far  as  they  are  inconsistent  with  the  "secur- 
ing" of  these  "unalienable  rights."  It  may  well  be 
questioned  whether  it  is  not  through  this  conception  of 
a  universal  supreme  law  that  there  exists  among  the 
American  people  the  conception  of  a  constitutional  law 


io8  The  American  Philosophy  of  Government 

which  is  supreme  over  States,  and  which  is  formed  by 
agreement  of  the  people  and  States  concerned  to  live 
in  indissoluble  union.  If  this  constitutional  law  has  its 
sole  basis  in  agreement,  there  may  be  a  question  as  to 
its  supremacy  and  as  to  the  indissolubility  of  the  Union. 
An  agreement  which  is  supreme  over  those  who  agree 
to  it,  and  which  is  indissoluble,  is  a  self-contradiction. 
Indissolubility  of  an  agreement,  and  its  supremacy 
over  those  who  agree  to  it,  must  depend  upon  some 
other  fact  than  the  agreement  of  the  parties. 

The  theory  that  the  supremacy  of  the  Constitution 
of  the  United  States  arises  from  the  agreement  of  the 
people  and  States  of  the  United  States  was  invoked  in 
the  Civil  War  as  a  reason  for  dividing  the  Union  into 
two  unions  when  the  people  of  the  two  sections  differed 
in  their  opinions  concerning  the  nature  of  the  Consti- 
tution which  they  desired.  The  Union  was  upheld  by 
those  who  believed  in  the  existence  of  this  supreme 
universal  law  referred  to  in  the  Declaration  of  Inde- 
pendence which  secures  ''the  unalienable  rights"  of  all 
men  to  "life,  liberty,  and  the  pursuit  of  happiness." 
After  the  war,  the  Union  was  by  the  fourteenth  amend- 
ment again  expressly  committed  to  the  maintenance  of 
this  law;  which  thus  became  the  real  bond  of  union 
between  the  people  and  States  of  the  Union.  By  that 
amendment  and  the  fifth  amendment,  the  Supreme 
Court,  in  all  cases  brought  before  it,  whether  by  or 
against  States  or  persons,  was  authorized  to  hold  in- 
valid any  act  of  any  legislative  body,  of  any  executive 
or  administrative  official,  or  of  any  court, — whether  of 
a  State  or  of  the  United  States, — which  deprives  any 
person  of  his  life,  liberty,  or  property  without  due 
process  of  law.  Under  this  authority  the  Supreme 
Court  exercises  a  jurisdiction  over  States  and  over  the 
United  States  similar  to  that  which  the  ordinary  courts 


Jurisdiction  of  Coiirts  Over  States        109 

of  justice  exercise  over  private  individuals.  It  is  a 
logical  and  reasonable  ground  for  maintaining  and  pre- 
serving the  Union  that  the  Union  is  the  ultimate  pro- 
tector and  preserver  of  this  law,  and  that  in  order  to 
perform  this  function  it  must  have  a  supremacy  over 
the  actions  of  constituent  States  to  the  extent  necessary 
to  enable  it  to  perform  the  function. 

The  question  therefore  arises,  whether  a  true  inter- 
national court  can  ever  exist  until  the  nations  of  the 
world  recognize  this  supreme  universal  law.  Until 
such  recognition  is  made,  the  powers  of  any  body  of 
men  called  an  international  court  can,  it  would  seem, 
never  rise  higher  than  a  mere  interpretation  of  treaties ; 
for  conventions  are  but  joint  treaties  and  supremacy 
of  treaties  or  conventions  over  national  law  by  agree- 
ment can  of  necessity  exist  only  so  long  as  the  agreement 
exists,  unless  the  agreement  is  itself  the  recognition  of 
a  supreme  universal  law.  A  court  to  interpret  treaties 
would  be  useful,  but  it  would  be  an  instrumentality 
and  adjunct  of  the  states  creating  it,  and  would  be 
bound  by  their  agreements,  even  though  such  agree- 
ments might  palpably  deprive  individuals  of  life,  lib- 
erty, or  property  without  due  process  of  law. 

If  it  be  the  fact,  as  American  beliefs  and  experience 
would  seem  to  indicate,  that  the  test  of  the  international 
character  of  a  court  is  not  whether  it  is  established  by 
the  nations,  but  whether  it  administers  a  law  which  is 
supreme  over  the  nations,  there  is,  it  would  seem,  no 
objection  to  national  courts  having  jurisdiction  to 
settle  disputes  in  which  foreign  states  or  semi-foreign 
states  (now  called  colonies  or  dependencies)  are  involved 
with  citizens  or  states  of  the  nation.  Once  it  is  recog- 
nized that  a  national  court  may  administer  a  law  which 
is  supreme  over  states,  there  is  no  reason  why,  if  the 
court  is  learned  and  impartial,  it  should  not  be  resorted 


no   The  American  Philosophy  of  Government 

to  by  foreign  states  for  the  judicial  settlement  of  their 
disputes.  So  also  federal  states  or  empires  may  form 
their  own  courts  for  the  administration  of  this  supreme 
law  as  between  their  own  constituent  states,  and  may 
provide  for  the  resort  of  foreign  states  to  these  tribunals. 

By  the  establishment  of  such  national,  federal  or 
imperial  courts  having  jurisdiction  over  states  by  ad- 
ministering this  supreme  universal  law,  the  supreme 
international  court — when  one  shall  be  established  by 
agreement  of  the  nations — will  be  safeguarded,  as  the 
Supreme  Court  of  the  United  States  is  safeguarded  by 
the  fact  that  every  court  in  the  United  States  admin- 
isters this  universal  supreme  law.  Under  such  an  ar- 
rangement the  Supreme  Court  becomes  *'the  last 
resort,  on  appeal,"  in  disputes  between  states,  and  has 
the  benefit  of  the  consideration  and  action  of  other 
courts. 

Such  an  international  supreme  court  would  of  course 
need  to  be  safeguarded  in  every  possible  way,  so  that 
its  attention  might  be  invoked  only  when  the  sifting 
process  has  been  carried  to  the  last  extremity  and  when 
the  final  issues  have  been  determined  and  the  material 
facts  on  both  sides  have  been  stated  in  the  most  suc- 
cinct form.  During  the  Colonial  period,  England  and 
Great  Britain  found  it  necessary  to  have  the  King  in 
Council  assisted  by  a  subordinate  council  to  act  as 
master  in  chancery  or  referee,  and  to  investigate  social 
and  economic  questions.  It  was  also  found  necessary 
that  the  King  in  Council  should  have  power  to  appoint 
commissioners  for  investigating  facts  at  a  distance  from 
Great  Britain  and  should  have,  indeed,  all  the  powers 
necessary  to  make  its  jurisdiction  effective.  Such 
powers,  it  would  seem,  an  international  supreme  court 
ought  to  have. 

In  view  of  the  fact  that  states  may  represent  the 


Jurisdiction  of  Courts  Over  States         iii 

claims  of  their  citizens  against  foreign  states,  the  volume 
of  business  of  a  supreme  international  court  will  tend 
to  be  increasingly  large,  and  it  will  become  increasingly 
necessary  as  it  has  in  the  case  of  the  Supreme  Court  of 
the  United  States,  that  the  jurisdiction  of  such  a  court 
should,  so  far  as  possible,  be  limited  to  deciding  ques- 
tions which  it  has  been  impossible  to  decide  by  agree- 
ment or  by  resort  to  any  other  tribunal. 

If  it  be  the  case,  as  it  appears  to  be,  that  one  of  the 
functions  of  such  an  international  supreme  court  would 
be  to  administer  this  supreme  universal  law,  it  would 
follow  that  it  ought  to  have  jurisdiction,  similar  to  that 
which  the  Supreme  Court  of  the  United  States  has  under 
the  fourteenth  amendment,  in  cases  where  a  citizen 
of  the  state  complains  against  his  own  state  for  its  vio- 
lation of  his  fundamental  rights  as  an  individual. 
Jurisdiction  of  such  cases,  would,  it  would  seem,  be  as 
useful  for  doing  away  with  the  necessity  of  civil  war 
as  would  the  jurisdiction  of  cases  between  states  for 
doing  away  with  the  necessity  of  foreign  war. 

This  examination  of  the  development  of  the  American 
doctrine  of  jurisdiction  of  courts  over  states  will,  it  is 
hoped,  have  served  to  show  that  the  Supreme  Court  of 
the  United  States  exists  not  merely  as  a  part  of  the 
Federal  Union  for  the  interpretation  of  the  Constitu- 
tion, but  that  it  has  a  reason  for  its  existence  which 
appeals  equally  to  all  the  nations  of  the  world,  in  that 
it  expounds  and  applies  the  supreme  universal  law 
securing  the  fundamental  rights  of  the  individual, 
which  the  Constitution  recognizes  and  which  binds  all 
nations  and  peoples ;  and  in  that  it  upholds  the  funda- 
mental rights  of  the  states  is  the  best  means  of  uphold- 
ing this  law. 

It  would  seem,  therefore,  that  it  is  immaterial 
whether  the  nations  of  the  world  shall  federate  in  the 


112   The  American  Philosophy  of  Government 

same  way  that  the  United  States  have  federated  or  in 
any  other  way;  or  whether  they  shall  remain  substan- 
tially as  they  are  at  present.  The  close  relationship 
of  federal  union  under  a  general  government  may  be 
too  intimate  for  the  separated  and  diverse  nations  of 
the  world,  and  the  most  efficient  bond  of  union  may  be 
this  supreme  universal  law  securing  the  fundamental 
rights  of  the  individual  against  all  governmental  action, 
administered  by  the  courts  of  all  the  nations,  federal 
states,  and  empires  of  the  world,  and  in  the  last  resort 
on  appeal  by  an  international  supreme  court  established 
by  the  nations. 


I 


EXECUTION  OF  JUDGMENTS  AGAINST 
STATES 


113 


EXECUTION  OF  JUDGMENTS  AGAINST 
STATES 

Reprinted  from  "The  Washington  Proceedings  of  the  American 
Society  for  the  Judicial  Settlement  of  International  Disputes,"  De- 
cember, 1 91 6. 

JUDGMENTS  AGAINST   STATES 

IN  the  Dred  Scott  case  the  parties  were  a  black  man 
and  a  white  man;  the  former  claiming  emancipa- 
tion from  slavery  because  the  latter,  as  his  owner, 
had  taken  him  from  a  slave-state  to  a  free-soil  state. 
The  case  came  to  the  Supreme  Court  by  virtue  of  its 
appellate  jurisdiction.  The  judgment  of  the  Supreme 
Court  in  favor  of  the  white  man  as  owner  of  the  black 
man,  was  in  fact  a  judgment  against  all  the  free-soil 
states,  constituting  about  one  half  the  states  of  the 
Union ;  and  it  was  and  is  so  universally  regarded.  The 
attempt  to  compel  the  execution  of  the  judgment  as  a 
precedent  led  to  the  Civil  War.  The  execution  of  the 
judgment  as  a  precedent  was  forever  brought  to  an 
end  by  the  adoption  of  the  thirteenth,  fourteenth  and 
fifteenth  amendments. to  the  Constitution. 

In  the  case  of  Virginia  vs.  West  Virginia  the  parties 
were  two  States  of  the  Union.  It  was  brought  in  the 
Supreme  Court  of  the  United  States  as  a  court  of  origi- 
nal jurisdiction.  The  issue  involved  was  whether  West 
Virginia  should  pay  Virginia  a  less  or  greater  amount 
of  money  under  a  contract  between  them.  A  greater 
amount  was  adjudged  to  be  due  than  West  Virginia 
expected,  and  more  than  it  thinks  reasonable.  A  ques- 
ts 


ii6  The  American  Philosophy  of  Government 

tion  of  the  compulsory  execution  of  the  judgment  has 
thus  arisen. 

In  the  Dred  Scott  case  the  constitutional  rights  of  the 
States  of  the  Union  were  at  issue,  as  well  as  the  funda- 
mental rights  of  all  men  to  life,  liberty,  and  the  pursuit 
of  happiness,  of  which  every  state,  equally  with  the 
Union,  is  the  constitutional  guardian.  It  dealt  with 
tremendous  questions,  vital  to  all  men  and  to  all 
sociated  groups  of  men  everywhere  and  in  all  time. 

In  the  Virginia- West  Virginia  case,  nothing  but  mon- 
ey is  involved.  The  issues  are  in  no  sense  fundamental 
or  vital.    No  constitutional  right  of  any  state  is  affected. 

Clearly,  the  judgment  in  the  Dred  Scott  case,  though 
rendered  in  a  suit  between  individuals  was,  in  essence, 
a  judgment  against  the  free-soil  states,  equally  as  the 
judgment  in  the  Virginia-West  Virginia  case,  rendered 
in  a  suit  between  these  states,  was  a  judgment  against 
the  State  of  West  Virginia.  Moreover,  considering  the 
vast  issues  involved  in  the  former  case  and  the  insig- 
nificant issues  involved  in  the  latter,  it  is  reasonable  to 
conclude  that  issues  vital  to  states  may  be  involved 
equally  in  the  one  class  of  cases  as  in  the  other. 

The  question  of  the  compulsory  execution  of  the 
judgments  of  a  court  of  a  federal  or  federalistic  union 
against  a  member-state  of  the  Union,  therefore,  in- 
cludes a  consideration  of  the  compulsory  execution  both 
of  the  indirect  judgments  rendered  against  states  in 
suits  between  individuals  and  corporations,  which  we 
commonly  speak  of  as  judgments  affecting  states' 
rights ;  and  of  the  direct  judgments  rendered  in  suits  to 
which  a  state  is  a  party  defendant  of  record. 

Moreover,  it  is  important,  in  such  an  inquiry,  never 
to  minimize  the  importance  of  these  indirect  judgments 
against  states;  for  a  consideration  of  the  principles  of 
federal  and  federalistic  unions  will  show  that  the  indi- 


Judgments  Against  States  117 

rect  jurisdiction  of  Courts  over  the  member-states  is  a 
necessary,  permanent,  and  ineradicable  incident  of  all 
such  unions;  and  that  the  direct  jurisdiction  of  Courts 
over  states  is  not  a  necessary  incident  of  such  unions, 
but  is  an  expedient  which  has  been  adopted  only  by 
such  federal  and  federalistic  unions  as  have  deemed  it 
suitable  to  their  circumstances,  and  which  has  not  yet 
been  proved  to  be  capable  of  universal  application. 

As  illustrating  the  truth  of  the  proposition  that  indi- 
rect judgments  of  courts  against  states  are  a  necessary 
incident  of  all  kinds  of  federal  or  federalistic  unions, 
one  may  recall,  in  addition  to  the  Dred  Scott  case, 
Calvin's  Case,  decided  in  1607  by  an  English  court,  in 
which  the  relations  of  England  and  Scotland  under  the 
union  of  the  two  states  in  the  person  of  King  James, 
as  James  I  of  England  and  James  VI  of  Scotland,  were 
adjudicated  in  a  suit  between  individuals  in  their  pri- 
vate capacity;  the  case  of  Campbell  vs.  Hall,  decided 
in  1774  by  an  English  court,  in  which  the  relations  be- 
tween Great  Britain  and  the  American  Colonies  as 
members  of  the  federalistic  union  known  as  the  British 
Empire,  were  adjudicated  in  a  suit  between  individuals 
— the  defendant  being  sued  in  an  official  capacity ;  and 
the  Insular  cases,  decided  between  1901  and  1912,  by 
American  courts  and  on  appeal  by  the  Supreme  Court 
of  the  United  States,  in  which  the  relations  between 
the  United  States  and  the  insular  countries  under  its 
jurisdiction,  together  forming  a  federalistic  union  to 
which  no  name  has  yet  been  attached,  were  adjudicated 
in  suits  between  individuals  and  corporations,  suing  or 
sued  in  private  or  official  capacities. 

As  illustrating  the  truth  of  the  proposition  that  it  is 
not  necessary  that  courts  in  federal  or  federalistic 
unions  should  have  direct  jurisdiction  over  the  member- 
states,  and  that  such  arrangements  are  dictated  in  each 


1 1 8  The  American  Philosophy  of  Government 

case  by  expediency  and  effectuated  by  agreement  be- 
tween the  states,  one  may  refer  to  the  various  federal 
constitutions,  written  and  unwritten,  which  have  ex- 
isted and  which  now  exist.  Such  an  examination  would 
reveal  few  instances  in  which  a  direct  jurisdiction  over 
states  has  been  conferred  on  courts.  The  Constitution 
of  the  United  States  and  that  of  Australia  would,  in- 
deed, be  the  most  conspicuous  examples  of  federal  con- 
stitutions in  which  this  jurisdiction  is  conferred  on 
courts;  but  under  these  constitutions,  equally  with  all 
other  federal  or  federalistic  constitutions,  the  courts 
also  render  indirect  judgments  against  the  member- 
states.  The  absence  of  such  a  provision  in  the  written 
or  unwritten  constitution  of  a  federal  or  federalistic 
union  does  not  mean  that  the  courts  have  not  jurisdic- 
tion over  the  member-states,  but  only  that  they  exercise 
it  indirectly. 

By  the  Constitution  of  the  United  States,  the  juris- 
diction to  render  a  direct  judgment  against  a  member- 
state  of  the  Union  is  confined  to  the  Supreme  Court; 
and  for  this  purpose  it  is  given  original  jurisdiction. 
Jurisdiction  to  render  indirect  judgments  against  states 
exists  in  all  the  courts  within  the  United  States.  The 
Supreme  Court  of  the  United  States  has  jurisdiction  to 
render  indirect  judgments  against  states  as  an  incident 
of  its  appellate  jurisdiction,  by  virtue  of  which  it  re- 
views, on  appeal,  writ  of  error,  or  certiorari,  judgments 
of  the  subordinate  courts  of  the  United  States  in  all 
cases  within  their  jurisdiction,  and  also  judgments  of 
the  Supreme  Courts  of  the  States  in  cases  arising  under 
the  Constitution  of  the  United  States. 

The  execution  of  the  direct  judgments  of  the  Supreme 
Court  against  a  state  is  supervised  by  that  Court  di- 
rectly. In  the  case  of  indirect  judgments  of  the  Su- 
preme Court  against  a  state  by  virtue  of  its  appellate 


Judgments  Against  States 


119 


jurisdiction,  the  Supreme  Court  remands  the  case  to 
the  court  below  for  judgment  in  accordance  with  its 
decision,  and  for  execution  of  the  judgment  so  to  be 
rendered;  and  that  court  supervises  the  execution  of 
the  judgment.  If,  however,  a  state  should  oppose  the 
execution  of  such  an  indirect  judgment,  the  Supreme 
Court  would  doubtless  participate  in  supervising  the 
execution  in  every  way  permitted  by  the  Constitution 
and  statutes. 

The  compulsory  execution  of  any  judgment  of  the 
Supreme  Court  against  a  state,  whether  the  judgment 
be  rendered  indirectly  in  an  action  between  individuals 
or  corporations  affecting  states'  rights,  or  directly  in 
an  action  to  which  the  defendant  state  is  a  party, 
proceeds  on  the  same  general  principles.  The  judgment 
of  the  Supreme  Court  is  in  both  cases  an  act  of  the 
United  States ;  the  opposition  of  a  state  to  the  execution 
of  the  judgment  is  in  both  cases  the  opposition  of  the 
State  to  an  act  of  the  United  States.  In  order,  however, 
to  simplify  the  inquiry,  it  will  be  assumed  in  the  follow- 
ing discussion  of  the  nature,  the  source,  the  extent,  and 
the  manner  of  exercise  of  the  power  of  the  United  States 
which  is  exercised  in  compelling  the  execution  of  a 
judgment  of  the  Supreme  Court  against  a  state,  that 
the  judgment  has  been  rendered  directly  against  the  state 
in  the  exercise  of  the  original  jurisdiction  of  the  Court. 

THE  NATURE  OF  THE  POWER  OF  EXECUTION 


In  all  civilized  countries  in  which  the  Roman  or  the 
English  system  of  law  prevails,  courts  not  only  hear 
causes  of  disputes  between  individuals  or  corporations 
and  render  judgment,  but  also  take  certain  action, 
after  judgment,  for  the  purpose  of  carrying  the  judg- 
ment into  effect  by  compulsion,  if  compulsion  proves 


120  The  American  Philosophy  of  Government 

to  be  necessary.  The  putting  of  a  judgment  into  effect, 
by  compulsion  if  found  to  be  necessary,  is  called  the 
execution  of  the  judgment. 

All  compulsory  execution  of  governmental  acts  or 
decrees  is,  as  the  name  execution  implies,  an  exercise 
of  the  executive  power  of  the  state  or  nation.  When 
courts  take  action  for  the  compulsory  carrying  into 
effect  of  their  judgments,  they  exercise  executive,  not 
judicial  power.  (Edmund  Randolph,  attorney  general 
of  the  United  States,  1793,  in  the  argument  of  the  case 
of  Chisholm  vs.  State  of  Georgia,  2  Dallas,  419,  428, 
said:  "Perhaps,  if  a  government  could  be  constituted 
without  mingling  at  all  the  three  orders  of  power, 
courts  should  in  strict  theory,  only  declare  the  law  of 
the  case,  and  the  subject  upon  which  the  execution  is  to 
be  levied;  and  should  leave  their  opinions  to  be  en- 
forced by  the  executive  power." 

Chief  Justice  Jay,  in  delivering  his  opinion  in  the  same 
case  (p.  478)  said:  "In  all  cases  of  actions  against 
states  or  individual  citizens,  the  national  courts  are 
supported  in  all  their  legal  and  constitutional  proceed- 
ings by  the  arm  of  the  executive  power." 

In  the  case  of  U.  S.  Bank  vs.  Halstead,  10  Wheaton, 
51,  decided  in  1825,  Justice  Thompson,  in  delivering 
the  opinion  of  the  court  (pp.  61,  62,  64)  said:  "The 
power  given  to  the  courts  over  their  process  is  no 
more  than  authorizing  them  to  regulate  and  direct  the 
conduct  of  the  marshal,  in  the  execution  of  the  process. 
.  .  .  It  is  a  power  incident  to  every  court  from  which 
process  issues,  to  enforce  upon  such  ofBcer  a  compli- 
ance with  his  duty,  and  a  due  execution  of  the  process 
according  to  its  command.") 

An  execution  is  only  one  form  of  the  compulsory 
process  of  courts  in  the  issuance  of  which  courts  exer- 
cise executive  power.    Subpoenas  to  compel  the  attend- 


Judgments  Against  States  121 

ance  of  parties  or  witnesses,  attachments  of  property- 
pending  suit,  temporary  injunctions,  orders  to  produce 
testimony,  as  well  as  executions  upon  judgments,  are 
manifestations  of  executive  power  wielded  by  the  courts. 

Accordingly,  the  compulsory  writs  issued  by  courts, 
including  writs  of  execution,  are  not  in  the  name  of  the 
court,  but  in  the  name  of  the  chief  executive  of  the  state 
or  nation  of  which  the  court  is  an  organ;  or  in  the 
name  of  the  state  or  nation ;  or  in  the  name  both  of  the 
state  or  nation  and  of  the  chief  executive.  (In  Free- 
man on  Executions,  ed.  1900,  Vol.  i,  §§  i,  39,  it  is  said: 
"The  writ  of  execution  is  a  written  command  or  pre- 
cept to  the  sheriff  or  ministerial  officer  in  writing  and 
under  the  seal  of  the  court,  directing  him  to  execute 
the  judgment  of  the  court.  .  .  .  The  command  of  the 
writ  may  as  properly  be  regarded  as  the  command  of 
the  law  as  of  the  court.  ...  It  has  always  been  the 
custom  in  England  to  issue  the  writ  in  the  name  of  the 
reigning  sovereign,  and  in  the  greater  portion  of  the 
United  States  in  the  name  of  the  state  or  of  the  people 
of  the  state." 

Blackstone  (vol.  4,  p.  122),  speaking  of  "Contempts 
against  the  King's  Prerogative,"  says  that  such  con- 
tempts "may  also  be  ...  by  disobeying  the  King's 
lawful  commands;  whether  by  writs  issuing  out  of 
courts  of  justice,  or  by  summons  to  attend  his  Privy 
Council.") 

In  the  courts  of  the  United  States,  in  pursuance  of 
the  evident  purpose  of  the  Constitution  that  the  United 
States  shall  be  sovereign  and  supreme  within  its  allotted 
sphere,  and  the  clear  command  of  the  Constitution  that 
the  President  shall  exercise  the  executive  power  of  the 
nation,  all  writs  of  compulsory  process  have  always 
been  in  the  name  of  the  President,  as  chief  executive 
of  the  United  States ;  the  full  formula  for  the  beginning 


122   The  American  Philosophy  of  Government 

of  all  such  writs  being  ''The  United  States  of  America, 
ss:     The  President  of  the  United  States  of  America, 

To Marshal,  etc.,  Greeting:"    Then  follows  a 

recital  of  the  facts  on  which  the  action  of  the  Marshal 
is  to  be  based,  and  a  command  to  the  Marshal  to  take 
the  compulsive  action  specified.  (For  the  forms  of 
writs  in  the  United  States  courts  see  Appendix  of 
Forms  in  The  Statutory  Jurisdiction  and  Practice  of 
the  Supreme  Court,  by  P.  Phillips;  also  in  Jurisdiction 
and  Procedure  of  the  Supreme  Court  of  the  United  States, 
by  Hannis  Taylor;  also  in  A  Treatise  on  Federal  Prac- 
tice, by  Roger  Foster.) 

The  principle  that  all  compulsory  process  of  the 
United  States  courts  shall  be  in  the  name  of  the  Presi- 
dent, as  Chief  Executive  of  the  United  States,  is  not 
established  by  any  act  of  Congress  or  by  any  executive 
order  of  the  President,  but  by  a  rule  of  the  Supreme 
Court  of  the  United  States,  adopted  at  its  first  session 
in  1790,  and  ever  since  continued  as  a  fundamental 
.and  unalterable  principle  of  action  of  the  United  States 
courts  in  the  issuing  of  compulsory  process  of  any  kind. 
At  the  first  session  of  Congress  held  in  1789,  the  first 
action  taken  by  the  Senate,  on  April  i,  was  to  ap- 
point a  committee,  with  Senator  Oliver  Ellsworth 
(afterwards  chief  justice  of  the  United  States)  as  chair- 
man, '*to  bring  in  a  bill  for  organizing  the  judiciary  of 
the  United  States."  The  bill  was  brought  in  on  June 
15  and  was  debated  on  eighteen  days.  After  having 
been  recommitted  and  reported  back  on  July  13,  it 
was  passed  by  the  Senate  on  July  17.  This  bill  con- 
tained no  provisions  concerning  process,  except  that 
by  the  14  section  all  the  United  States  courts  were 
authorized  to  issue  "writs  of  scire  facias,  habeas  corpus, 
and  all  other  writs  not  specially  provided  for  by 
statute,  which  may  be  necessary  for  the   exercise   of 


Judgments  Against  States  123 

their  respective  jurisdictions,  and  agreeable  to  the  prin- 
ciples and  usages  of  law." 

The  House  of  Representatives  held  the  bill  as  passed 
by  the  Senate  under  consideration  for  nearly  two 
months,  there  being  considerable  opposition  to  the 
system  of  circuit  and  district  courts  proposed;  but 
on  September  17  accepted  the  bill  in  principle  though 
with  amendments  respecting  details.  The  details  were 
adjusted  and  the  bill  became  a  law  on  September  24. 

On  September  17,  when  it  was  evident  that  the  bill 
for  organizing  the  courts  was  certain  to  be  adopted 
the  original  Senate  committee  which  had  reported  the 
bill  for  organizing  the  judiciary  reported,  through 
Senator  Richard  Henry  Lee  of  Virginia,  a  bill  ''to 
regulate  processes  in  the  courts  of  the  United  States" 
which  was  passed  by  the  Senate  on  September  19. 
This  bill  provided  that  **all  writs  or  processes,  issuing 
out  of  the  Supreme  or  Circuit  Courts,  shall  be  in  the 
name  of  the  President  of  the  United  States."  The 
House  of  Representatives  objected  to  this  provision 
and  amended  the  bill  so  as  to  require  all  such  writs 
and  processes  to  be  ''in  the  name  of  the  United 
States." 

The  only  speech  in  either  House  on  this  amendment, 
preserved  in  the  Annals  of  Congress,  is  that  of  Mr. 
Stone,  of  Maryland.  ^  Speaking  in  favor  of  the  House 
amendment,  he  said,  as  reported  in  the  Annals  of 
Congress  on  September  25 : 

' '  He  thought  substituting  the  name  of  the  President, 
instead  of  the  name  of  the  United  States,  was  a  de- 
claration that  the  sovereign  authority  was  vested  in  the 
executive.  He  did  not  believe  this  to  be  the  case.  The 
United  States  were  sovereign ;  they  acted  by  an  agency, 
but  could  remove  such  agency  without  impairing  their 
capacity  to  act.     He  did  not  fear  the  loss  of  liberty 


124  The  American  Philosophy  of  Government 

by  this  single  mark  of  power;  but  he  apprehended 
that  an  aggregate,  formed  in  one  inconsiderable  power 
and  another  inconsiderable  authority,  might,  in  time 
lay  a  foundation  for  pretensions  it  would  be  trouble- 
some to  dispute,  and  difficult  to  get  rid  of.  A  little 
prior  caution  was  better  than  much  future  remedy." 

Both  Houses  insisted  on  their  respective  views 
and  a  conference  committee  failed  to  find  a  solution 
for  the  dispute.  On  September  28,  the  Senate  amended 
the  bill  by  striking  out  the  whole  sentence  above 
quoted  concerning  the  style  of  the  writ,  by  omitting  all 
reference  to  the  Supreme  Court  in  the  section  in  which 
it  occurred,  and  by  providing  that  in  the  circuit  and 
and  District  Courts  **the  forms  of  writs  and  executions, 
except  their  style,  and  modes  of  process"  should  be  as 
therein  specified — thus  leaving  the  styles  of  writs  and 
executions  in  all  the  courts  of  the  United  States  to  be 
determined  by  rule  of  the  Supreme  Court  or  by  a 
statute   to   be   subsequently   enacted. 

The  Supreme  Court,  consisting  of  John  Jay,  as  chief 
justice,  James  Wilson,  of  Pennsylvania,  William  Cush- 
ing,  of  Massachusetts,  and  John  Blair,  of  Virginia, 
held  its  first  session,  according  to  the  provisions  of  the 
Judiciary  Act  of  1789,  on  February  i,  1790,  and  on 
February  3,  1790,  adopted  a  rule  on  the  subject  of  the 
style  of  writs,  which  in  substance  has  remained  un- 
changed to  this  day.  In  its  original  form  the  rule 
was  as  follows  (2  Dallas,  399) : 

"Ordered,  That  (unless,  and  until  it  shall  be  other- 
wise provided  by  law), all  process  of  this  court  shall  be 
in  the  name  of  the  President  of  the  United  States." 

Congress  in  1792,  passed  a  fuller  statute  relating  to 
processes  in  the  United  States  courts,  expressly  ex- 
cepting from  the  statute  *'the  style  of  writs"  and  giving 
the  Supreme  Court  power  to  modify  by  rule  the  method 


Judgments  Against  States  125 

of  proceeding  on  execution  specified  by  the  statute 
and  power  to  make  rules  for  the  Circuit  and  District 
Courts.  Under  the  statutes  relating  to  process  above 
referred  to,  the  practice  seems  to  have  been  adopted 
by  the  Supreme  Court,  and  also  by  the  Circuit  and 
District  Courts  without  any  special  rule  or  order  be- 
ing made  on  the  subject,  of  issuing  all  writs  of  com- 
pulsory process  in  the  form  stated  in  the  text,  namely 
' '  The  United  States  of  America  ss.  The  President  of  the 
United  States,"  etc.  It  seems  reasonable  to  infer  that 
this  form  was  selected  with  a  view  to  meeting  the  demand 
of  the  Senate  that  all  compulsory  process  should  be  in 
the  name  of  the  President,  and  of  the  House  of  Rep- 
resentatives that  it  should  be  in  the  name  of  the 
United  States.  The  meaning  of  the  formula  seems  to 
be  that  the  compulsory  processes  of  the  United  States 
are  the  commands  of  the  United  States,  as  sovereign, 
acting  by  the  President,  as  chief  executive  of  the  United 
States,  addressed  to  the  ministerial  officers  of  the 
United  States.  By  adoption  of  this  formula,  it  was 
made  clear  that  resistance  to  the  lawful  acts  of  the 
marshal  is  a  crime  against  the  sovereignty  of  the 
United  States  of  the  nature  of  treason,  and  not  a  crime 
against  the  court  or  the  executive  in  the  nature  of  a  con- 
tempt ;  and  that  the  President  in  enforcing  the  process 
of  the  United  States  courts  does  not  act  as  a  sovereign, 
but  as  chief  executive  of  his  sovereign,  the  United 
States. 

The  courts  of  the  United  States,  in  thus  wielding  the 
executive  power  of  the  United  States,  authenticate  or, 
as  the  legal  expression  is,  "teste"  the  writ  of  the  Presi- 
dent. This  authentication  is  provided  for  by  act  of 
Congress.  In  the  Supreme  Court,  the  authentication  or 
"teste"  is  by  the  Chief  Justice;  but  even  he  does  not 
actually  sign  the  writ,  the  actual  signature,  according 


126  The  American  Philosophy  of  Government 

to  the  statute,  being  by  the  clerk  of  the  Supreme  Court. 
(The  first  section  of  the  Process  Act  of  1789,  which 
has  continued  to  this  day,  provided  that  "all  writs 
and  processes  issuing  from  the  Supreme  or  a  Circuit 
Court  shall  bear  test  of  the  chief  justice  of  the  Supreme 
Court,  and  if  from  a  District  Court,  shall  bear  test  of 
the  judge  of  such  court,  and  shall  be  under  the  seal 
of  the  court  from  which  they  issue;  and  signed  by  the 
clerk  thereof.") 

A  writ  of  execution  of  a  judgment  of  the  Supreme 
Court  of  the  United  States  against  a  state,  is  thus  the 
act  of  the  United  States  of  America,  as  sovereign  within 
its  sphere,  and  of  the  President  of  the  United  States, 
as  Chief  Executive  of  the  United  States,  authenticated 
by  the  Supreme  Court,  addressed  to  the  subordinate 
executive  officer  of  the  United  States  designated  by 
the  statute  for  the  purpose — the  United  States  marshal 
at  large,  styled  by  the  statute  the  marshal  of  the  Su- 
preme Court,  advising  him  of  the  judgment  rendered, 
specifying  the  mode  of  execution,  and  commanding  him 
to  execute  the  judgment  in  the  manner  specified.  (By 
sections  219  and  224  of  the  Judicial  Code  of  191 1,  the 
marshal  of  the  Supreme  Court  is  appointed  by  the  Court 
and  is  required  to  ''serve  and  execute  all  process  and 
orders  issuing  from  it.")  As  the  marshal  acts  in 
the  name  of  the  United  States  and  of  the  President, 
the  writ  calls  into  operation  the  whole  moral  in- 
fluence of  the  United  States,  to  be  wielded  by  the 
President  as  Chief  Executive  and  the  whole  physical 
force  of  the  United  States,  if  need  be,  to  be  wielded  by 
the  President  as  Commander-in-Chief  of  the  Army  and 
Navy  of  the  United  States  and  of  such  part  of  the  militia 
of  the  states  as  may  be  summoned  into  the  service  of 
the  United  States  by  authority  of  Congress  and  by 
executive  order. 


Judgments  Against  States  127 

THE  SOURCE  OF  THE  POWER 

The  question  arises:  By  what  constitutional  au- 
thority do  the  courts  of  the  United  States  thus  wield 
the  executive  power  of  the  United  States  in  the  name 
of  the  Chief  Executive?  The  executive  power  of  the 
United  States  is  by  section  i,  article  II,  of  the  Consti- 
tution, 'Vested  in  a  President  of  the  United  States." 
The  judicial  power  of  the  United  States  is,  in  equally 
clear  and  precise  words,  by  section  i,  article  III,  "vested 
in  one  Supreme  Court,  and  in  such  inferior  courts  as 
Congress  may  from  time  to  time  ordain  and  establish." 
Congress  is  by  section  8  of  article  I  and  by  other  pro- 
visions of  the  Constitution  granted  certain  specific 
powers,  but  none  of  these  provisions  has  any  bearing 
on  the  question  except  the  tenth  clause  of  section  i  of 
article  VIII,  which  provides  that  Congress  shall  have 
power  "to  make  all  laws  which  shall  be  necessary  and 
proper  for  carrying  into  execution  the  foregoing  powers, 
and  all  other  powers  vested  by  this  Constitution  in 
the  government  of  the  United  States,  or  in  any  depart- 
ment or  officer  thereof." 

It  is  evident  from  the  whole  Constitution  and  from 
the  words  and  acts  of  the  framers  in  the  Constitutional 
Convention  that  the  United  States  courts  were  in- 
tended to  have  the  usual  executive  powers  of  courts; 
and  the  almost  unanimous  view  of  legislators,  execu- 
tives, and  courts  has  always  been  that  these  executive 
powers  are  derived  from  the  grant  of  ''the  judicial 
power"  made  by  the  Constitution  to  the  Supreme  Court 
and  to  the  other  courts  of  the  United  States,  as  being 
necessarily  implied  in  that  power  by  the  custom  and 
usage  of  civilized  nations. 

Courts  have  exercised  this  incidental  executive  power 
over  their  process  in  aid  of  their  jurisdiction  for  many 


128  The  American  Philosophy  of  Government 

centuries.  The  practice  apparently  arose  in  the  last 
days  of  the  Roman  Empire.  Under  the  Roman  system 
of  early  days,  the  judgment  plaintiff  was  permitted, 
by  proceedings  before  the  magistrate,  to  seize  the  per- 
son of  the  judgment  defendant  in  satisfaction  of  the 
judgment  and  keep  him  in  slavery.  Later  on,  the  seiz- 
ure of  all  the  property  of  the  judgment  defendant  by 
the  judgment  plaintiff  was  substituted  for  enslavement. 
At  a  later  period,  the  praetores — the  local  chief  execu- 
tives— authorized  or  instituted  arrangements  for  mak- 
ing a  division  of  the  debtor's  property  among  all  his 
creditors.  In  the  last  days  of  the  Roman  Empire,  the 
praetor,  after  rendering  judgment  in  person  or  by  a 
judge  appointed  by  him,  attended  to  the  execution  of 
the  judgment,  using  military  force  if  necessary.  Both 
in  rendering  judgments  and  in  executing  them,  all 
the  Roman  judicial  tribunals  and  executives  acted 
in  the  name  of  the  emperor.  From  this  system  it 
resulted  that  the  judicial  tribunals  gradually  came 
more  and  more  to  superintend  the  execution  of  judg- 
ments. (See  The  Institutes  of  the  Roman  Law,  by  Dr. 
Rudolph  Sohm  (translated  by  Ledlie,  2d  ed.,  1901), 
p.  317.)  Doubtless  this  produced  a  human  and  rea- 
sonable execution  of  the  orders  and  judgments  of  these 
tribunals;  for  the  practice  was  taken  over  into  the 
judicial  system  of  Continental  Europe  and  of  England 
at  an  early  date.  In  England,  failure  of  the  sheriff  to 
obey  the  lawful  commands  of  the  court  was  by  statute 
made  a  crime  of  the  nature  of  contempt,  and  resistance 
to  an  officer  in  executing  the  lawful  commands  of  the 
court  was  made  a  crime  of  the  nature  of  treason.  The 
practice  passed  from  England  to  the  American  Colonies, 
and  they  continued  it  when  they  became  states,  though 
their  constitutions  recognized  the  division  of  powers 
into  the  legislative,  executive,  and  judicial,  and  placed 


Judgments  Against  States 


129 


each    power   in    charge    of    a    special    governmental 
organ. 

Under  the  circumstances  it  was  natural  that  the 
framers  of  the  Constitution  should  have  refrained  from 
inserting  in  it  an  express  grant  to  the  courts  of  the 
United  States  of  all  the  executive  powers  then  exercised 
by  courts  of  the  states.  Such  a  grant  would  have  been 
inconsistent  with  the  division  of  powers  made  by  the 
Constitution.  Moreover  it  was  unnecessary,  since  the 
people  of  the  states  and  the  states  themselves  were 
logically  forced  either  to  recognize  that  the  United 
States  courts  had  these  executive  powers  as  an  incident 
of  "the  judicial  power"  granted  to  them,  or  to  revolu- 
tionize the  practice  of  the  state  courts. 

In  view  of  the  fact  that  the  Constitution  makes  no 
express  grant  of  these  executive  powers  to  the  United 
States  courts  and  that  these  powers  are  derived  by 
implication  from  the  grant  of  the  judicial  power, 
Congress  has  always  refrained  from  enacting  any  statute 
which  should  purport  to  grant  to  the  United  States 
courts  these  executive  powers.  Such  an  act,  if  passed, 
might  have  been  claimed  to  show  that  Congress  con- 
sidered that  no  warrant  could  be  found  in  the  Constitu- 
tion for  the  exercise  of  such  powers;  and  there  would 
have  been  danger  that  such  a  statute  might  have 
been  held  unconstitutional  as  an  attempt  by  Congress 
to  confer  executive  powers  on  the  judiciary.  Congress 
has,  however,  by  various  statutes,  passed  at  various  times, 
recognized  that  the  United  States  courts  have  power, 
under  the  Constitution,  to  issue  and  control  all  neces- 
sary compulsory  process  in  aid  of  their  jurisdiction,  as 
a  power  derived  from  the  Constitution,  and  has  by 
statute  effectuated  and  regulated  the  exercise  of  these 
powers.  Thus  in  1789,  Congress  by  the  fourteenth 
section  of  the  Judiciary  Act,  empowered  the  United 


130  The  American  Philosophy  of  Government 

States  courts  to  issue  the  writs  of  habeas  corpus  and 
scire  facias,  "and  all  other  writs  which  may  be  necessary 
for  the  exercise  of  their  jurisdictions,  and  agreeable  to 
the  principles  and  usages  of  law."  This  Judiciary  Act 
also  provided  for  the  appointment  of  a  United  States 
marshal  to  attend  the  United  States  courts  in  each  dis- 
trict, and  required  the  marshal  to  "execute  all  lawful 
precepts  directed  to  him  and  issued  under  the  authority 
of  the  United  States,"  giving  him  power  "to  command 
all  necessary  assistance  in  the  execution  of  his  duty." 
The  Process  Act  of  1789  provided  for  the  manner  in 
which  "all  writs  and  processes"  of  the  United  States 
courts  should  "bear  teste."  By  this  act  as  finally 
amended  in  1792,  certain  general  principles  were  estab- 
lished as  respects  process  in  actions  in  the  United  States 
courts,  and  they  were  authorized  to  make  rules  regard- 
ing process,  not  inconsistent  with  the  statutes,  subject 
to  the  general  rules  provided  by  the  Supreme  Court. 
These  statutory  arrangements  have  continued  with 
slight  changes  to  this  day. 

The  Supreme  Court,  as  was  to  be  expected,  has  al- 
ways firmly  asserted  its  power  and  the  power  of  all  the 
United  States  courts  to  issue  all  compulsory  process 
necessary  for  the  exercise  of  their  respective  jurisdic- 
tions. It  has  held  that  this  power  is  derived  by  neces- 
sary implication  from  the  grant  of  "the  judicial  power," 
and  is  exercised  by  the  courts  according  to  the  principles 
established  by  Congress  in  its  legislation  for  effectuating 
and  regulating  the  exercise  of  the  power,  and  according 
to  the  rules  of  court,  not  inconsistent  with  the  statutes, 
these  rules  being  governed  by  the  general  rules  pre- 
scribed by  the  Supreme  Court.  (In  the  case  of  Way- 
man  vs.  Southard,  10  Wheaton,  i,  decided  in  1825, 
Chief  Justice  Marshall,  delivering  the  opinion  of  the 
court,  said  (pp.  21,  23): 


Judgments  Against  States  131 

*'One  of  the  counsel  for  the  defendants  insists  .  .  . 
that  the  government  of  the  Union  cannot,  by  law, 
regulate  the  conduct  of  its  officers  in  the  service  of 
executions  on  judgments  rendered  in  the  Federal 
Courts;  but  that  the  state  legislatures  retain  complete 
authority  over  them.  The  court  cannot  accede  to  this 
novel  construction.  The  Constitution  concludes  its 
enumeration  of  granted  powers  with  a  clause  authoriz- 
ing Congress  to  make  all  laws  which  shall  be  necessary 
and  proper  for  carrying  into  execution  the  foregoing 
powers,  and  all  other  powers  vested  by  this  Constitution 
in  the  government  of  the  United  States,  or  in  any  de- 
partment or  officer  thereof.  The  judicial  department 
is  invested  with  jurisdiction  in  certain  specified  cases, 
in  all  which  it  has  power  to  render  judgment.  That 
a  power  to  make  laws  for  carrying  into  execution  all 
the  judgments  which  the  judicial  department  has  power 
to  pronounce,  is  expressly  conferred  by  this  clause,  seems 
to  be  one  of  those  plain  propositions  which  reason- 
ing cannot  render  plainer.  .  .  .  The  jurisdiction  of  a 
court  is  not  exhausted  by  the  rendition  of  its  judg- 
ment, but  continues  until  the  judgment  is  satisfied. 
Many  questions  arise  on  the  process  subsequent  to 
the  judgment,  in  which  jurisdiction  is  to  be  exercised. 
It  is,  therefore,  no  unreasonable  extension  of  the  words 
of  the  act  [the  section  of  the  Judiciary  Act  giving  the 
United  States  courts  power  to  issue  all  writs  necessary 
to  the  exercise  of  their  jurisdiction]  to  suppose  an  exe- 
cution necessary  for  the  exercise  of  jurisdiction." 

In  the  case  of  United  States  Bank  vs.  Halstead,  10 
Wheaton,  51,  decided  in  1825,  Justice  Thompson, 
delivering  the  opinion  of  the  court  (p.  64),  said: 

*'An  execution  is  the  fruit  and  end  of  the  suit,  and 
is  very  aptly  called  the  life  of  the  law.  The  suit 
does  not  terminate  with  the  judgment;    and  all  pro- 


132   The  American  Philosophy  of  Government 

ceedings  on  the  execution  are  proceedings  in  the  suit, 
and  which  are  expressly,  by  act  of  Congress  [the  Pro- 
cess Act]  put  under  the  regulation  and  control  of  every 
court  from  which  process  issues." 

See  also  Gordon  vs.  the  United  States,  117  U.  S., 
697,  702,  704. 

The  provision  of  the  process  Act  of  1789,  authorizing 
the  United  States  courts  to  issue  all  writs  '*  which  may 
be  necessary  to  their  respective  jurisdictions,  and 
agreeable  to  the  usages  of  law"  has  never  been  changed. 
(See  sec.  262  of  the  Judicial  Code  of  191 1.)  Nor  has 
the  provision  relating  to  the  manner  in  which  process 
shall  bear  teste.  (See  Revised  Statutes  U.  S.,  sec. 
911) 

In  Ex  parte  Siebold,  100  U.  S.,  371,  Mr.  Justice 
Bradley,  deHvering  the  opinion  of  the  court,  said: 

''We  hold  it  to  be  an  incontrovertible  principle, 
that  the  government  of  the  United  States  may,  by 
means  of  physical  force,  exercised  through  its  official 
agents,  execute  on  every  foot  of  American  soil  the  power 
and  functions  that  belong  to  it.  .  .  .  It  must  execute 
its  powers  or  it  is  no  government.  It  must  execute 
them  on  the  land  as  well  as  on  the  sea,  on  things  as 
well  as  on  persons.  And,  to  do  this,  it  must  necessarily 
have  power  to  command  obedience,  preserve  order  and 
keep  the  peace;  and  no  person  or  power  in  this  land 
has  the  right  to  resist  or  question  its  authority,  so  long 
as  it  keeps  within  the  bounds  of  its  jurisdiction.") 

THE  EXTENT  OF  THE  POWER 

Congress  has  never  attempted  to  define  the  limita- 
tions upon  the  power  of  the  Supreme  Court  in  cases  of 
which  it  has  original  jurisdiction.  In  these  cases,  the 
court  by  its  own  interpretation  of  the  constitutional 


Judgments  Against  States  133 

grant  of  power,  determines  both  the  hmitations  of  its 
own  jurisdiction  and  the  extent  of  its  executive  powers 
in  issuing  compulsory  process  in  aid  of  its  jurisdiction. 
The  rules  concerning  execution  of  judgments  which 
Congress  has  enacted  apply  to  cases  in  the  Supreme 
Court  of  which  it  has  appellate  jurisdiction  and  to  all 
cases  in  the  other  courts  of  the  United  States.  These 
rules  are,  that  execution  in  actions  at  law  shall  be  levied 
in  the  same  manner  as  in  a  court  of  the  state  in  which 
the  execution  is  levied,  and  that  execution  in  actions  of 
equity  and  admiralty  shall  follow  the  rules  observed  in 
equity  and  admiralty  courts  at  the  time  the  Constitu- 
tion was  adopted.  These  provisions  are  no  doubt  to  be 
observed  by  the  Supreme  Court  in  cases  of  its  original 
jurisdiction,  so  far  as  they  are  applicable. 

Inasmuch  as  the  Supreme  Court,  in  cases  of  its  origi- 
nal jurisdiction,  determines  the  limits  of  its  jurisdic- 
tion, it  has  power  to  hold  that  it  has  no  jurisdiction  in 
particular  classes  of  cases  between  states,  to  determine 
what  kinds  of  property  of  the  defendant  state  are  en- 
titled to  exemption  from  execution,  and  to  establish  the 
principles  upon  which  it  will  act  in  refusing  on  grounds 
of  public  policy  to  issue  a  writ  of  execution.  When  it 
holds  that  it  has  no  jurisdiction  of  a  designated  class 
of  cases  between  states  the  decision  necessarily  also 
operates  as  a  limitation  upon  the  executive  powers  of 
the  court.  Whenever  it  holds  that  certain  kinds  of 
property  owned  by  states  are  exempt  from  execution, 
and  whenever  it  denies  a  motion  for  a  writ  of  execution 
against  a  state  on  grounds  of  public  policy,  it  plainly 
establishes  limitations  upon  its  executive  powers. 

The  Supreme  Court  has  held  that  it  has  no  jurisdic- 
tion of  cases  between  states  in  which  the  complaining 
state  comes  before  the  court  **as  parens  patricE,  trustee, 
guardian  or  representative  of  all  its  citizens,"  seeking 


134   The  American  Philosophy  of  Government 

reparation  from  the  defendant  state  for  some  injury- 
done  by  it  acting  in  a  similar  representative  capacity 
for  all  of  its  citizens ;  but  that  those  cases  between  states 
only  are  justiciable  which  have  for  their  purpose  the 
obtaining  of  reparation  for  *'a  special  and  peculiar  in- 
jury" committed  by  the  defendant  state  on  the  plaintiff 
state  of  such  character  ''as  would  sustain  an  action  by 
a  private  person."  (State  of  Louisiana  vs.  State  of 
Texas,  176  U.  S.  i,  17.) 

The  Supreme  Court  has  never  yet  had  occasion  to 
decide  to  what  extent  the  Constitution  limits  the  juris- 
diction of  the  Supreme  Court  by  confining  its  jurisdic- 
tion to  "controversies  between  two  or  more  states." 
The  Judiciary  Act  of  1789  interpreted  the  word  "con- 
troversies" by  using  the  expression  "civil  controver- 
sies." Justice  Iredell  in  the  case  of  Chisholm  vs.  State 
of  Georgia,  2  Dallas,  419,  431,  stated  that  the  word 
* 'controversies"  was  used  so  as  to  exclude  all  criminal 
cases,  from  which  it  would  appear  to  be  a  natural  infer- 
ence that  the  Supreme  Court  has  no  jurisdiction  of 
actions  between  states  which  are  based  on  an  alleged 
wrongful  motive  or  intent  of  the  defendant  state. 

The  Supreme  Court  has  held  that  "the  public  prop- 
erty held  by  any  municipality,  city,  county,  or  state  is 
exempt  from  seizure  upon  execution,  because  it  is  held 
by  such  corporation,  not  as  a  part  of  its  private  assets, 
but  as  a  trustee  for  public  purposes."  (In  the  case  of 
South  Dakota  vs.  North  Carolina,  192  U.  S.  286. 
Opinion  of  the  court  by  Justice  Brewer,  p.  318.) 

The  court  has  also  held  that  it  will  not  issue  an  exe- 
cution upon  a  judgment  against  a  state  when  it  appears 
that  the  state  has  no  means  of  satisfying  the  judgment 
except  through  the  exercise  of  its  taxing  power.  (Rees 
vs.  City  of  Watertown,  19  Wallace,  107,  116,  117.) 

In  the  case  of  Virginia  vs.  West  Virginia,  which  is  now 


Judgments  Against  States  1 35 

pending  in  the  Supreme  Court,  on  a  motion  for  an 
execution  on  a  money  judgment  of  $12,000,000  and  in- 
terest rendered  in  favor  of  Virginia,  a  claim  is  made  by 
West  Virginia  that  the  Supreme  Court  has  no  power 
to  issue  execution  on  a  money  judgment  against  a  state. 
The  court  has  denied  the  motion  for  execution,  in  order 
to  give  the  legislature  of  West  Virginia  an  opportunity 
to  provide  for  the  payment  of  the  judgment.  If  no 
such  provision  is  made,  however,  Virginia  has  permis- 
sion to  renew  the  motion  for  an  execution,  and  the  cotirt 
will  doubtless  decide  upon  the  point  raised  by  West 
Virginia. 

During  the  time  that  the  American  Union  existed 
under  the  Articles  of  Confederation,  suits  by  individu- 
als against  states  were  sometimes  brought  in  state 
courts  and  the  rule  was  then  established  that  no  action 
for  a  money  judgment  would  lie  against  a  state,  on  the 
ground  that  a  state  court  could  not  enforce  execution 
of  such  a  judgment.  (Nathan  vs.  Commonwealth  of 
Virginia,  i  Dallas,  jy.)  Only  in  cases  where  property 
belonging  to  a  state  was  found  within  the  jurisdiction 
of  the  court  of  another  state,  could  the  court  take  juris- 
diction, and  not  even  then  unless  the  suit  was  in  rem, 
that  is,  against  the  property  itself,  to  determine  the 
title  to  it  or  liens  upon  it.  It  was  thought  inconsistent 
with  state  sovereignty  that  any  compulsion  should  be 
placed  upon  a  state  on  account  of  a  contract  debt; 
and,  to  avoid  the  question  of  execution,  the  state  courts 
declined  to  take  jurisdiction.  That  all  compulsion  of 
states  is  war,  is  self-evident.  Hamilton,  in  No.  81  of 
the  Federalist,  recognized  this  when  he  said,  arguing 
against  the  jurisdiction  of  the  United  States  courts  in 
actions  brought  by  individuals  on  debts  due  by  the 
states:  "To  what  purpose  would  it  be  to  authorize 
suits  against  states  for  the  debts  they  owe  ?    How  could 


136   The  American  Philosophy  of  Government 

recoveries  be  enforced?  It  is  evident  that  it  could  not 
be  done  without  waging  war  against  the  contracting 
state:  and  to  ascribe  to  the  Federal  courts,  by  mere 
implication,  and  in  destruction  of  a  pre-existing  right 
of  the  state  governments,  a  power  which  would  involve 
such  a  consequence  would  be  altogether  forced  and  un- 
warrantable."  The  sentiment  of  civilized  mankind 
seems  to  be  crystallizing  on  the  proposition  that  an 
unpaid  debt  is  not  adequate  as  a  cause  of  war.  Al- 
though the  Convention  respecting  the  Limitation  of 
Force  in  the  Recovery  of  Contract  Debts  adopted  by 
the  second  Hague  Conference  permits  the  use  of  force 
when  the  debt  has  been  reduced  to  judgment  by  an 
arbitral  award,  nevertheless  the  principle  underlying 
that  Convention  is  the  broad  principle  above  stated — 
that  an  unpaid  debt  is  not  an  adequate  cause  of  war; 
so  that  ultimately  the  Convention  may  be  extended  to 
cover  even  contract  debts  reduced  to  judgments.  The 
claim  made  by  West  Virginia  in  bar  of  the  power  of 
the  Supreme  Court  to  issue  execution  on  a  money 
judgment  may,  therefore,  quite  possibly  be  upheld  by 
the  Supreme  Court. 

The  only  case  in  which  the  court  has  ever  taken  pro- 
ceedings of  the  nature  of  execution,  after  judgment 
against  a  state,  would  appear  to  be  that  of  the  State 
of  South  Dakota  vs.  State  of  North  Carolina,  but  in 
this  case  there  was  property  of  North  Carolina  not 
used  by  it  for  any  public  purpose  which  was  within 
the  control  of  the  court.  (192  U.  S.  286.)  The  suit  was 
brought  by  South  Dakota  on  bonds  owned  by  it  which 
had  been  issued  by  North  Carolina,  and  which  were  se- 
cured by  railroad  stock  owned  by  North  Carolina  and 
mortgaged  by  it  to  the  holder  of  the  bonds  to  secure  their 
payment.  The  court  rendered  judgment  on  the  bonds 
and  ordered  the  mortgaged  stock  sold  by  the  marshal 


Judgments  Against  States  137 

the  Supreme  Court  on  foreclosure.  Though  the 
proceeding  was  not  in  rem,  yet  it  may  be  claimed  to  fall 
within  the  principle  applied  by  the  state  courts  in  suits 
against  states  during  the  period  of  the  Confederation. 

In  considering  the  extent  of  the  power  of  the  Supreme 
Court  to  execute  judgments  against  states,  it  is  proper 
always  to  bear  in  mind  that  the  executive  powers  were 
conferred  on  courts  in  the  days  when  courts  dealt  only 
with  individuals  as  litigants.  The  reasons  for  confer- 
ring and  continuing  these  powers  doubtless  were  that 
the  courts  proved  themselves  to  be  able,  through  the 
sheriff,  aided  by  the  posse  comitatus,  to  execute  their 
judgments  against  individuals,  and  to  execute  them 
more  conveniently,  more  expeditiously,  more  humanely, 
and  more  justly,  than  the  executive  department  of  the 
goverment.  These  reasons  do  not  apply  to  courts 
which  deal  with  states  as  litigants,  in  which  execution  of 
the  judgment  is  only  another  name  for  civil  war.  The 
marshal  with  all  the  assistance  he  can  command  is 
powerless  in  dealing  with  a  state.  If  judgments  against 
states  are  to  be  executed,  the  combined  moral  influence 
of  the  Supreme  Court,  the  President,  and  the  Congress 
must  be  exerted,  the  special  responsibility  resting  upon 
the  President,  and  the  whole  physical  force  of  the 
United  States  must  be  used,  if  necessary  to  maintain 
the  majesty  and  power  of  the  United  States  and  its 
legal  right  of  supremacy  when  acting  within  its  allotted 
sphere.  In  the  case  of  Chisholm  vs.  State  of  Georgia, 
2  Dallas,  419,  Justice  Blair  said  (p.  451): 

"Nor  does  the  jurisdiction  of  the  court,  in  relation 
to  a  state,  seem  to  be  questionable,  on  the  ground 
that  Congress  has  not  provided  any  form  of  execution, 
or  pointed  out  any  mode  of  making  the  judgment 
against  a  state  effectual.  The  argument  ab  inutili 
may  weigh  much  in  cases  depending  upon  the  construe- 


138   The  American  Philosophy  of  Government 

tion  of  doubtful  legislative  acts,  but  can  have  no  force, 
I  think,  against  the  clear  and  positive  directions  of  an 
act  of  Congress  and  of  the  Constitution.  Let  us  go 
on  as  far  as  we  can;  and  if,  at  the  end  of  the  business, 
notwithstanding  the  powers  given  us  in  the  fourteenth 
section  of  the  judicial  law  [the  power  to  issue  all  writs 
necessary  for  the  exercise  of  jurisdiction],  we  meet 
difficulties  insurmountable  to  us,  we  must  leave  it  to 
those  departments  of  government  which  have  higher 
powers;  to  which,  however,  there  may  be  no  necessity 
to  have  recourse.  Is  it  altogether  a  vain  expectation 
that  a  state  may  have  other  motives  than  such  as 
arise  from  the  apprehension  of  coercion,  to  carry  into 
execution  a  judgment  of  the  Supreme  Court  of  the 
United  States,  though  not  conformable  to  [its]  own 
ideas  of  justice?" 

It  is  doubtless  in  view  of  this  impossibility  of  courts 
going  very  far  in  executing  judgments  against  states 
that  all  the  tribunals  of  which  history  gives  us  informa- 
tion which  have  been  granted  jurisdiction  in  contro- 
versies between  states  or  nations  have  not  been  endowed 
with  any  executive  powers,  but  have  been  compelled 
to  rely  upon  an  agreement  of  the  litigants  in  advance  to 
abide  by  the  judgment  or  to  certify  their  judgments 
to  an  executive  upon  which  the  responsibility  for  exe- 
cuting the  judgment  or  declining  to  execute  it,  was 
placed. 

Thus  the  Imperial  Chamber  established  in  1495,  in 
the  Holy  Roman  Empire,  which  is  referred  to  by  Ham- 
ilton, in  No.  80  of  the  Federalist,  as  the  prototype  of 
the  United  States  Supreme  Court  regarded  as  a  tri- 
bunal for  the  pacific  settlement  of  interstate  disputes, 
had  no  executive  powers;  but  only  certified  its  judg- 
ments to  the  Imperial  Council,  which  with  the  Emperor 
constituted  the  executive  and  legislature  of  the  Empire. 


Judgments  Against  States  139 

The  Imperial  Council  decided  whether  or  not  to  execute 
the  judgment,  and  determined  the  manner  and  form 
of  the  execution  in  each  case.  (Geschichte  der  Deutschen, 
by  M.  I.  Schmidt,  (ed.  1808),  vol.  4,  pp.  364,  390.) 

The  various  political  committees  of  the  English  and 
British  Privy  Council  which  had  jurisdiction  to  hear 
and  determine  intercolonial  disputes  and  disputes  be- 
tween the  colonies  and  the  mother  country,  had  no 
executive  powers,  but  merely  certified  their  judgments 
to  the  King  by  way  of  advice  to  him ;  and  he,  advised 
by  his  whole  Council,  as  chief  executive,  determined 
the  question  of  execution.  (The  final  section  of  the 
Instructions  of  Charles  II  to  the  Council  of  Foreign 
Plantations,  of  December  i,  1660,  was  as  follows: 
**You  are  hereby  required  and  empowered  to  advise, 
order,  settle,  and  dispose  of  all  matters  relating  to 
the  good  government,  improvement,  and  management 
of  our  foreign  plantations  or  any  of  them,  with  your 
utmost  skill,  discretion,  and  prudence;  and  in  all  cases 
wherein  you  shall  judge  that  further  powers  and 
assistance  shall  be  necessary,  you  are  to  address  your- 
selves to  us  and  our  Privy  Council  for  our  further 
pleasure,  resolution,  and  direction  therein."  {The 
Administration  of  Dependencies,  by  A.  H.  Snow,  p.  82.) 

The  Permanent  International  Arbitration  Court  es- 
tablished by  the  first  Hague  Conference  has  no  execu- 
tive or  legislature  to  execute  its  awards.  In  lieu  of  this, 
litigant  nations  are  required  to  agree  in  advance  to 
accept  its  award.  (Convention  for  the  Pacific  Settle- 
ment of  International  Disputes,  Art.  18  (1899); 
Art.  37  (1907);  printed  in  The  Hague  Conventions 
and  Declarations  of  iSgg  and  igoy,  edited  by  James 
Brown  Scott,  pp.  55,  56.  The  Draft  Convention 
relative  to  the  creation  of  a  Judicial  Arbitration 
Court   approved   by   the   Second   Hague   Conference 


140  The  American  Philosophy  of  Government 

(printed  in  the  same  volume,  pp.  31-39)  has  no  pro- 
vision for  the  execution  of  the  judgments  of  the 
proposed  court,  nor  does  it  appear  that  the  nations 
which  should  adopt  the  convention  would  obligate 
themselves  to  conform  to  these  judgments.) 

This  is  plainly  compulsion ;  for  though  the  nations  are 
free  to  use  the  tribunal  or  not,  it  is  impossible  for  any  na- 
tion to  use  it  without  placing  itself  under  moral  obliga- 
tions to  the  other  nation  and  to  the  Society  of  Nations. 
The  moral  influence  of  the  court  is  thus  diminished 
and  no  method  is  provided  for  executing  its  awards. 
It  seems  clear  that  courts  having  jurisdiction  in  contro- 
versies between  states  or  nations  should  either  give 
judgments  which  the  litigants  are  free  to  accept  or 
reject — ^in  which  case  the  moral  influence  of  the  court 
would  have  its  maximum  effect — or  else  should,  as 
organs  of  a  compulsive  union  of  states,  have  their 
judgments  executed  by  the  executive  and  legislature 
of  the  compulsive  union. 

The  Articles  of  Confederation  provided  for  the  estab- 
lishment of  tribunals  for  the  pacific  settlement  of  dis- 
putes between  states,  but  made  no  definite  provision 
for  enforcing  them.  The  framers  of  the  Constitution 
in  conferring  on  the  Supreme  Court  ''the  judicial 
power"  in  ''controversies  between  two  or  more  states"; 
in  vesting  in  the  President  "the  executive  power"  and 
requiring  him  ' '  to  take  care  that  the  laws  are  faithfully 
executed";  and  in  giving  Congress  power  to  effectuate 
these  powers,  evidently  considered  that  the  Constitu- 
tion, as  a  whole,  made  adequate  provision  for  the  exe- 
cution of  judgments  of  the  Supreme  Court  rendered 
against  states  in  cases  where  such  execution  was  proper; 
but  none  of  them  seems  to  have  thought  that  the  respon- 
sibility of  the  Supreme  Court  in  executing  such  judg- 
ments was  exclusive,  or  was  without  great  limitations. 


Judgments  Against  States  141 

(James  Wilson,  speaking  on  December  7,  1877,  in  the 
Pennsylvania  Convention  called  to  consider  the  rati- 
fication of  the  Constitution  of  the  United  States,  said: 
"This  power  [to  determine  controversies  between  states] 
is  vested  in  the  present  Congress,  but  they  are  unable, 
as  I  have  already  shown  to  enforce  their  decisions. 
The  additional  power  of  carrying  their  decrees  into 
execution,  we  find  is  therefore  necessary,  and  I  pre- 
sume no  exception,  will  be  taken  to  it."  Pennsyl- 
vania and  the  Federal  Convention,  by  John  Bach  Mc- 
Master  and  Frederick  D.  Stone,  p.  356.) 

In  the  great  case  of  Chisholm  vs.  State  of  Georgia — 
the  first  case  in  which  the  powers  of  the  Supreme  Court 
were  considered,  decided  in  1793,  Chief  Justice  Jay  said : 

"In  all  cases  of  actions  against  states  or  individual 
citizens,  the  National  Courts  are  supported  in  all  their 
legal  and  constitutional  proceedings  and  judgments  by 
the  arm  of  the  executive  power;  but  in  cases  of  actions 
against  the  United  States,  there  is  no  power  which  the 
courts  can  call  to  their  aid.  From  this  distinction 
important  conclusions  are  deducible,  and  they  place  the 
case  of  a  state,  and  the  case  of  the  United  States,  in 
very  different  points  of  view."     (2  Dallas,  419.) 

Congress,  recognizing  the  constitutional  duty  of  the 
President  to  come  to  the  aid  of  the  Federal  Courts 
when  necessary  to  execute  their  judgments,  effectuated 
his  powers  by  statute  in  1792,  and  1795,  authorizing 
him  to  use  the  armed  forces  of  the  United  States  for 
this  purpose.  This  statutory  provision,  though  amend- 
ed at  various  times,  has  always  remained  on  the  statute 
books.  In  its  original  form  the  statute  made  the  Presi- 
dent's action  dependent  upon  a  written  notification 
received  by  him  from  the  chief  justice  or  an  associate 
justice  of  the  Supreme  Court  of  the  United  States;  but 
this  limitation  was  soon  repealed,  and  the  question  of 


142    The  American  Philosophy  of  Government 

the  interposition  of  the  President  was  left  to  be  deter- 
mined by  the  President,  thus  relieving  the  Supreme 
Court  of  any  odium  which  the  use  of  military  force 
might  involve. 

President  Madison,  writing  to  Governor  Snyder  of 
Pennsylvania  on  April  13,  1809,  acknowledging  receipt 
of  a  copy  of  a  Pennsylvania  statute  designed  to  conform 
to  a  judgment  of  the  United  States  Court,  said : 

"The  Executive  is  not  only  unauthorized  to  prevent 
the  execution  of  a  decree  sanctioned  by  the  Supreme 
Court  of  the  United  States,  but  is  especially  enjoined 
by  statute  to  carry  into  effect  any  such  decree,  where 
opposition  may  be  made  to  it."  {Life  and  Writings 
of  Madison,  Vol.  2,  p.  438.  The  act  referred  to  by 
President  Madison  was  the  act  of  May  2,  1792,  au- 
thorizing the  President  to  call  forth  the  militia  "to 
execute  the  laws  of  the  Union,  suppress  insurrections 
and  repel  invasions"  as  modified  by  the  act  of  Febru- 
ary 28,  1795,  enacted  for  the  same  purpose. 

The  statutes  now  in  force  on  this  subject  are  Sections 
5298  and  5299,U.  S.  Revised  Statutes.  Section  5298 
contains  the  substance  of  the  original  act  of  1792, 
and  in  addition  authorizes  the  President,  "whenever 
it  shall  become  impracticable,  in  the  judgment  of 
President,  to  enforce,  by  the  ordinary  course  of  ju- 
dicial proceedings,  the  laws  of  the  United  States 
within  any  state  or  territory,  to  employ,  not  only  the 
militia,  but  also  "such  parts  of  the  land  and  naval 
forces  of  the  United  States  as  he  may  deem  necessary 
to  enforce  the  faithful  execution  of  the  laws  of  the 
United  States,  or  to  suppress  such  rebellion." 

See  also  section  3493,  which  is  a  part  of  the  chapter 
relating  to  civil  rights  under  the  fifteenth  amend- 
ment. By  this  the  President  is  authorized  "to  employ 
such  part  of  the  land  or  naval  forces  of  the   United 


Judgments  Against  States  143 

States,  or  the  militia,  as  may  be  necessary  to  aid  in 
the  execution  of  judicial  process  issued  under  any  of 
the  preceding  provisions." 

Chief  Justice  Taney,  in  a  case  decided  by  him  in  the 
United  States  Circuit  Court  in  1861,  said: 

"In  exercising  the  power  to  'take  care  that  the  laws 
are  faithfully  executed,'  the  President  is  to  take  care 
that  they  be  faithfully  carried  into  execution,  as  they 
are  expounded  and  adjudged  by  the  coordinate  branch 
of  the  government  to  which  that  duty  is  assigned  by 
the  Constitution.  It  is  thus  made  his  duty  to  come  to 
the  aid  of  the  judicial  authority,  if  it  is  resisted  by  a 
force  too  strong  to  be  overcome  without  the  assistance 
of  the  executive  arm;  but  in  exercising  this  power  he 
acts  in  subordination  to  judicial  authority,  assisting  it 
to  execute  its  process  and  enforce  its  judgments.'* 
{Ex  parte  Merryman,   17  Federal  Cases,   149.) 

By  "subordination"  Chief  Justice  Taney  doubtless 
meant  not  subordination  in  the  legal  sense,  but  in  the 
philosophical  sense.  His  idea  was  evidently  that  the 
President  in  executing  the  judgments  of  the  Federal 
Courts  was  to  act  promptly  and  strongly  as  a  military 
commander,  but  only  for  the  purpose  of  executing  the 
judgment  in  the  same  manner  as  the  court  itself  would 
have  done ;  thus  subordinating  the  power  of  the  United 
States  to  those  great  and  fundamental  principles  of 
equality  and  justice  which  have  always  influenced 
courts  in  executing  their  judgments. 

It  seems  reasonable  to  conclude,  therefore,  that  inas- 
much as  all  executive  powers  exercised  by  courts  have 
their  origin  in  public  policy,  and  inasmuch  as  the  Execu- 
tive may  properly  exercise  these  powers  in  cases  in 
which  the  Courts  prefer  not  to  exercise  them  on  grounds 
of  public  policy,  or  are  unable  to  exercise  them,  the 
Supreme  Court  may,  in  controversies  between  states  of 


144  The  American  Philosophy  of  Government 

which  it  has  jurisdiction,  proceed  with  the  execution 
to  any  extent  that  it  deems  proper,  or  may  refuse  to 
exercise  its  executive  powers  altogether ;  its  action  being 
determined  by  considerations  of  public  policy.  Its 
failure  to  act  does  not  necessarily  mean  that  the  judg- 
ment will  not  be  executed;  for  the  President  is  author- 
ized by  the  Constitution  to  execute  judgments  of  the 
United  States  courts,  and  is  able  to  do  so  if  furnished 
by  Congress  with  the  requisite  force.  In  executing  a 
judgment  of  the  Supreme  Court  against  a  state,  the 
President  doubtless  has  constitutional  power  to  act  on 
his  own  initiative  in  aid  of  the  court;  but  probably  in 
practice  the  court  would,  in  most  cases,  certify  the 
judgment  to  the  President,  either  leaving  it  wholly  to 
him  and  to  Congress  to  decide  whether  to  execute  it 
and  in  what  manner,  or  making  recommendations  as  to 
the  course  to  be  followed.  Since  the  above  was 
written,  an  attempt  has  been  made  to  institute 
a  new  method  of  procedure  in  aid  of  execution  of 
judgments  rendered  by  the  Supreme  Court  against 
States.  On  February  5,  1917,  the  State  of  Virginia 
filed  in  the  Supreme  Court  a  bill  for  a  mandamus 
in  aid  of  execution  in  the  case  of  Virginia  vs.  West 
Virginia,  to  which  case  reference  has  been  made  above. 
To  this  bill  all  the  persons  constituting  the  whole 
legislative  body  of  West  Virginia  were  made  parties 
defendant.  The  object  of  the  mandamus  proceeding 
was  to  compel  these  defendants  in  their  official  ca- 
pacities, as  together  constituting  the  legislative  body 
of  West  Virginia,  to  levy  a  tax  to  pay  the  judgment. 
The  authorities  cited  by  Virginia,  in  its  brief  in  support 
of  its  application  for  a  rule  to  show  cause,  were  the 
cases  in  which  the  Supreme  Court  has  sustained  the 
action  of  the  Circuit  Courts  of  the  United  States  in 
issuing   writs   of   mandamus   against   taxing   officers 


Judgments  Against  States  145 

of  municipal  corporations,  in  aid  of  the  execution  of 
the  judgments  of  these  courts  against  these  munici- 
pal corporations,  compelling  these  officers  to  levy  taxes 
to  pay  the  judgment,  in  compliance  with  State  laws 
imposing  this  duty  upon  the  municipal  officials.  The 
case  of  Louisiana  vs.  Jumel.  107  U.  S.  711,  727,  728, 
is  particularly  relied  upon.  In  the  cases  above  re- 
ferred to,  the  United  States  Courts  exercised  no  com- 
pulsion upon  the  State ;  they  only  compelled  municipal 
officers  to  act  as  the  State,  by  laws  already  enacted, 
had  directed  them  to  do.  The  object  of  the  man- 
damus proceeding  in  the  Virginia- West  Virginia  case 
is  to  exercise  compulsion  upon  the  State,  by  requir- 
ing State  officials,  assembled  as  the  supreme  legislature 
of  the  State,  to  enact  new  laws.  The  claim  is  made 
by  Virginia  that  the  voluntary  submission  of  West 
Virginia  to  adjudication  of  the  claim  of  Virginia 
against  it  by  the  Supreme  Court,  was  a  voluntary 
submission  to  compulsion  by  the  Supreme  Court, 
as  respects  its  supreme  legislative  action,  for  the  bene- 
fit of  Virginia. 

THE  MANNER  OF  EXERCISING  THE  POWER 

The  executive  power  proceeds  in  its  work  of  making 
effective  the  just  commands  of  the  state  or  nation  partly 
by  means  of  conciliation  and  partly  by  means  of  force. 
The  chief  executive  of  a  state  or  nation  wields  the  col- 
lective moral  influence  of  its  people  and  their  united 
physical  force.  It  is  gradually  being  perceived  that  the 
best  and  most  lasting  results  can  be  obtained  by  induc- 
ing voluntary  obedience  to  the  commands  of  the  state 
through  conciliation,  and  that  the  highest  use  to  which 
the  physical  force  of  the  state  can  be  put  is  to  protect 
the  dignity  of  the  state  and  of  its  agencies  so  that  they 


146   The  American  Philosophy  of  Government 

may  effectively  pursue  their  conciliative  work  and 
bring  about  just  government  by  the  consent  of  the 
governed. 

If  the  President  were  called  upon  to  execute  a  judg- 
ment of  the  Supreme  Court,  he  would,  if  he  accepted 
the  above  principles  as  the  true  principles  of  executive 
action,  first  of  all  satisfy  himself  that  the  decision  was 
constitutional  and  according  to  law ;  for  it  is  conceivable 
(though  in  the  highest  degree  unlikely)  that  a  judgment 
even  of  the  Supreme  Court  might  itself  be  unconstitu- 
tional or  contrary  to  law.  President  Jackson,  in  his 
Proclamation  of  December  11,  1832,  warning  South 
Carolina  against  attempting  to  nullify  the  United 
States  tariff  act,  said:  "There  are  two  appeals  from 
an  unconstitutional  act  passed  by  Congress — one  to  the 
judiciary,  the  other  to  the  people  and  states."  So  from 
any  judgment  of  the  Supreme  Court  which  involves 
considerations  of  a  political  nature,  there  is  an  appeal 
to  the  people  and  states;  and  the  President,  when 
called  upon  to  execute  a  judgment  of  the  Supreme 
Court  against  a  state,  would  perforce  give  heed  to  the 
judgment  of  this  majestic  court  of  final  appeal. 

The  President  would  also  wish  to  be  advised  as  to 
how  he  might  execute  the  judgment  so  as  not  to  inter- 
fere with  the  great  principles  of  the  Constitution;  for 
though  a  judgment  of  a  United  States  court  is  undoubt- 
edly a  law  of  the  United  States  which  the  President  is 
bound  to  cause  to  be  faithfully  executed,  it  is  in  the 
nature  of  a  private  law,  even  when  it  is  a  judgment  of 
the  Supreme  Court  against  a  state,  and  it  must  be 
executed  so  as  to  conform  to  fundamental  principles. 

But  doubtless  no  President,  upon  receiving  from  the 
Supreme  Court  a  judgment  against  a  state  of  the  Union 
properly  certified,  rendered  in  a  case  plainly  justiciable 
as  being  capable  of  being  determined  by  the  principles 


Judgments  Against  States  147 

of  law  and  equity  as  recognized  by  our  own  state  and 
national  courts  and  legislatures,  in  which  the  facts  had 
been  fully  ascertained  and  the  judgment  rendered  after 
due  hearing  and  deliberation,  would  long  hesitate  to 
use  his  moral  influence  as  Chief  Executive  of  the  Union 
and  all  the  physical  force  of  the  United  States  which 
Congress  had  placed  at  his  disposal,  to  compel  execu- 
tion of  the  judgment. 

The  provision  of  the  Constitution  that  "the  President 
shall  take  care  that  the  laws  are  faithfully  executed" 
seems  generally  to  have  been  considered  as  sufficient 
authority  in  itself  to  enable  the  President  to  execute 
the  constitutional  powers  of  the  United  States  whenever 
resistance  is  offered  to  them ;  but  Congress  has  by  many 
statutes  effectuated  this- power  of  the  President.  It 
would  therefore  be  proper  for  the  President,  in  case  he 
doubted  whether  existing  statutes  gave  him  sufficient 
authority  to  execute  a  judgment  of  the  Supreme  Court 
against  a  state,  to  ask  Congress  to  legislate  so  as  to 
supply  him  with  the  necessary  means  of  exercising 
moral  influence  and  so  as  to  place  adequate  military 
and  naval  force  at  his  disposal. 

Perhaps  also  the  President  has  authority,  if  he  deems 
proper,  to  call  upon  Congress  to  act  as  a  Council  of 
Conciliation  in  bringing  to  bear  the  collective  moral 
influence  of  the  people  of  the  United  States  on  a  state 
against  which  a  judgment  has  been  so  rendered.  By 
section  10  of  Article  I  of  the  Constitution  it  is  provided 
that  "no  state  shall,  without  the  consent  of  Congress 
.  .  .  enter  into  an  agreement  or  compact  with  another 
state."  This  necessarily  implies  that  any  state  may, 
by  the  consent  of  Congress,  enter  into  any  agreement 
or  compact  with  another  state.  The  power  given  to 
Congress  to  consent  to  agreements  between  states 
would  seem  to  imply,  by  reasonable  implication,  the 


148    The  American  Philosophy  of  Government 

power  in  Congress  to  conciliate  between  states,  in  acute 
cases  of  dispute,  so  as  to  induce  them  to  agree.  In 
the  case  of  State  of  Louisiana  vs.  State  of  Texas,  176 
U.  S.  I,  Chief  Justice  Fuller,  delivering  the  opinion 
of  the  court,  said  (p.  17):  "Controversies  between 
them  [states  of  the  Union]  arising  out  of  public  re- 
lations and  intercourse  cannot  be  settled  either  by 
war  or  diplomacy,  though,  with  the  consent  of  Con- 
gress, they  may  be  composed  by  agreement."  But, 
though  the  President  might  thus  perhaps  call  upon  the 
Congress  to  act  as  the  Council  of  Conciliation,  it  would 
doubtless  be  inexpedient  to  do  so  in  case  of  any  dis- 
putes which  might  lead  to  a  division  of  Congress  on 
sectional  lines.  In  such  cases  it  would  be  safer  for  the 
President  to  assume  full  responsibility  and  full  power, 
as  he  has  the  constitutional  right  to  do;  only  calling 
upon  Congress  to  effectuate  his  powers,  if  necessary, 
by  legislation. 

Inasmuch  as  the  execution  by  the  President  of  a 
judgment  of  the  Supreme  Court  against  a  state  is  an 
act  of  the  same  kind  as  the  execution  of  an  act  of 
Congress,  the  precedents  established  by  two  of  our 
greatest  Presidents — Washington  and  Jackson — in  com- 
pelling the  execution  of  acts  of  Congress  may  properly 
be  considered  in  this  connection.  These  precedents 
show  that  it  is  essentially  the  moral  and  conciliating 
influence  of  the  United  States  which  the  President  is 
to  exercise.  Though  he  is  to  use  the  military  and  naval 
force  of  the  United  States  to  an  overwhelming  and  irre- 
sistible extent,  he  is  to  use  it  essentially  as  his  protector 
and  as  the  protector  of  the  majesty  and  dignity  of  the 
United  States  while  engaged  in  the  work  of  conciliation. 

President  Washington  had  occasion  to  compel  the 
execution  of  an  act  of  Congress  in  1794.  The  Excise 
Act  of  1 79 1  was  resisted  in  the  four  western  counties  of 


Judgments  Against  States  149 

Pennsylvania.  At  his  request,  Congress,  passed  laws 
making  resistance  to  the  execution  of  laws  of  the  United 
States  and  of  legal  process  of  the  United  States  courts 
a  crime,  and  authorizing  the  President  to  use  the  militia 
in  suppressing  conspiracies  for  resisting  these  laws  or 
judicial  proceedings  under  them ;  it  being  provided  that 
the  warrant  for  the  President's  action  should  be  a  noti- 
fication by  the  Chief  Justice  or  an  Associate  Justice  of 
the  Supreme  Court  of  the  United  States  to  the  effect 
that  such  resistance  had  occurred.  Washington,  pur- 
suant to  the  statute,  issued  a  proclamation  warning 
the  conspirators  and  commanding  them  to  obey  the 
laws.  He  also  appointed  a  Commission  of  Conciliation 
to  confer  with  the  conspirators.  Speaking  of  the  powers 
of  this  Commission  Washington  said,  in  his  Address  to 
Congress  of  November  19,  1794: 

"They  were  authorized  to  confer  with  any  bodies  of 
men  or  individuals.  They  were  instructed  to  be  candid 
and  explicit  in  stating  the  sensation  which  had  been 
excited  in  the  Executive,  and  his  earnest  wish  to  avoid 
a  resort  to  coercion;  to  represent,  however,  that  without 
submission,  coercion  must  be  the  resort;  but  to  invite 
them  at  the  same  time,  to  return  to  the  demeanor  of 
faithful  citizens,  by  such  accommodations  as  lay  within 
the  sphere  of  Executive  power.  Pardon,  too,  was  ten- 
dered to  them  by  the  Government  of  the  United  States 
.  .  .  upon  no  other  condition  than  a  satisfactory 
assurance  of  obedience  to  the  laws." 

When  the  Commission  of  Conciliation  failed  and 
President  Washington  was  called  upon  in  1794  to  take 
military  action  to  suppress  the  rebellion,  the  warrant 
for  his  action,  as  he  himself  states  in  his  message  of 
November  19,  1794,  was  a  notification,  in  pursuance  of 
the  statute  of  1793,  by  "an  Associate  Justice  of  the 
Supreme  Court  of  the  United  States  that  in  the  Counties 


150  The  American  Philosophy  of  Government 

of  Washington  and  Allegheny,  in  Pennsylvania,  laws 
of  the  United  States  were  opposed  and  the  executing 
thereof  obstructed,  by  combinations  too  powerful  to 
be  suppressed  by  the  ordinary  course  of  judicial  pro- 
ceedings, or  by  the  powers  vested  in  the  Marshal  of 
that  District."  The  Associate  Justice  who  signed  the 
notification  was  James  Wilson,  whose  long  and  brilliant 
service,  as  a  member  of  the  Continental  Congress,  of 
the  Constitutional  Convention  and  of  the  Supreme 
Court,  had  already  made  him  a  leading  authority  in  all 
questions  of  law  and  politics.  In  all  that  Washington 
did  he  had  the  benefit  of  the  advice  of  Jefferson,  as 
his  Secretary  of  State,  of  Hamilton  as  his  Secretary  of 
the  Treasury,  of  Jay  as  Chief  Justice,  and  of  Randolph 
as  Attorney  General.  Pursuant  to  the  statute  of  1793, 
Washington  called  out  the  militia  of  Pennsylvania, 
Virginia,  Maryland,  and  New  Jersey,  forming  a  force 
of  fifteen  thousand  men,  so  strong  in  proportion  to  the 
rebels  as  to  be  irresistible.  He  himself  took  command, 
and  the  governors  of  Virginia,  Maryland,  and  New 
Jersey  rode  at  the  head  of  their  divisions.  With  this 
overwhelming  force  in  evidence,  Washington  still  per- 
sisted in  his  attempts  at  persuasion  and  conciliation. 
When  the  rebellion,  was  quelled,  partly  by  persuasion 
and  partly  by  force,  he  saw  to  it  that  the  principal 
offenders  were  brought  to  trial  and  sentenced;  but 
before  he  ceased  to  be  President  he  pardoned  all  of 
them."  (See  History  of  the  United  States  by  Bryant 
and  May,  vol.  4,  pp.  118-121.) 

President  Jackson,  in  exercising  the  executive  power 
against  the  State  of  South  Carolina,  in  1833,  when 
South  CaroHna  threatened  to  nullify  the  protective 
tariff  law  of  the  United  States,  sent  General  Scott  into 
the  State  with  an  overwhelming  military  force  sup- 
ported by  a  strong  naval  force,  with  instructions  to 


Judgments  Against  States  151 

keep  his  overwhelming  military  and  naval  power  in 
evidence,  but  to  use  every  possible  effort  for  conciliation. 
The  result  was  an  amendment  of  the  law  which  satisfied 
South  Carolina  without  sacrificing  the  protective  tariff 
principle.  (See  History  of  the  United  States  by  Bryant 
and  May,  vol.  4,  pp.  306-311.) 

President  Cleveland,  in  executing  the  powers  of  the 
United  States  over  the  mails  and  interstate  commerce 
in  the  State  of  Illinois,  during  the  railroad  strike  of  1894, 
acting  under  the  constitutional  provision  requiring  the 
President  to  take  care  that  the  laws  are  faithfully 
executed  and  under  the  existing  statutes  authorizing 
him  to  use  the  armed  forces  for  this  purpose,  used  a 
part  of  the  army  of  the  United  States.  His  action 
was  approved  by  resolution  of  both  Houses  of  Congress 
and  was  held  constitutional  by  the  United  States 
Supreme  Court  in  a  test  case  afterwards  brought. 
(See  The  Government  and  the  Chicago  Strike,  by  Grover 
Cleveland;  Address  of  Hon.  Thomas  M.  Cooley,  as 
President  of  the  American  Bar  Association,  in  the 
Reports  of  the  American  Bar  Association  for  i8q4, 
P-  233;  Congressional  Record,  Senate  proceedings  for 
July  II,  i8g4;  House  proceedings  for  July  16,  18Q4. 
See  also  In  re  Debs,  158  U.  S.,  564.)  His  action  has 
been  criticized  on  the  ground  that  it  was  wholly  re- 
pressive, and  not  directed  towards  conciliation;  but 
it  is  questionable  whether  the  resistance  to  the  ex- 
ercise by  the  United  States  of  its  constitutional  powers 
was  not  so  passionate  and  unreasonable  that  concilia- 
tion was  impossible  and  the  only  course  open  was 
one  of  mere  repression.  However  this  may  be,  the 
precedents  established  by  Washington  and  Jackson 
seem  clearly  to  show  that,  though  force — overwhelming 
and  irresistible,  since  only  by  such  force  can  the  result 
be  produced  with  the  minimum  of  war — is  to  be  used 


152   The  American  Philosophy  of  Government 

by  the  United  States,  against  opposition  to  its  just  and 
lawful  action;  nevertheless,  in  all  cases  where  the  oppo- 
sition is  based  on  reasonable  grounds,  this  force  is  to 
be  used  only  in  aid  of  its  conciliative  influence.  The 
failure  of  a  State  of  the  Union  to  conform  to  a  judgment 
against  it  rendered  by  the  Supreme  Court  would  cer- 
tainly be  based  on  some  reasonable  ground,  and  if  the 
United  States,  acting  through  the  President,  were 
called  upon  to  execute  such  a  judgment,  it  seems  clear 
that  every  effort  of  every  department  of  the  Govern- 
ment should  be  directed  towards  accomplishing  the 
result  by  conciliation;  though  prudence  and  policy 
would  dictate  the  use  of  overwhelming  and  irresistible 
military  and  naval  forces,  to  maintain  the  dignity  and 
majesty  of  the  United  States  while  engaged  in  its  con- 
ciliative efforts. 

It  is  natural  and  proper  that  the  Supreme  Court,  in 
controversies  between  States,  looking  forward  to  the 
difficulties  in  executing  the  judgment  and  the  possi- 
bilities of  civil  war  which  every  judgment  against  a 
State  involves,  should  itself  act,  so  far  as  possible,  as  a 
tribunal  of  judicative  conciliation;  seeking  to  induce 
litigating  States  to  settle  their  dispute  by  agreement, 
and,  when  this  proves  impossible,  appealing  to  those 
motives  which  should  induce  States  of  a  Union  to 
accept  the  lawful  decrees  of  the  tribunal  appointed  to 
adjudge  their  controversies. 

In  the  case  of  State  of  Virginia  vs.  State  of  West 
Virginia,  the  Supreme  Court  has  taken  a  decided  step 
in  this  direction.  In  its  opinion  in  that  case,  the  Court, 
speaking  by  Justice  Holmes,  said: 

"The  case  is  to  be  considered  in  the  untechnical 
spirit  proper  for  dealing  with  a  quasi-international  con- 
troversy, remembering  that  there  is  no  municipal  code 
governing  the  matter,  and  that  this  Court  may  be 


Judgments  Against  States  153 

called  on  to  adjust  differences  that  cannot  be  dealt 
with  by  Congress  or  disposed  of  by  the  Legislature  of 
either  State  alone.   .    .    . 

''As  this  is  no  ordinary  commercial  suit,  but,  as  we 
have  said,  a  quasi-international  difference  referred  to 
the  Court  in  reliance  upon  the  honor  and  constitutional 
obligations  of  the  States  concerned  rather  than  upon 
ordinary  remedies,  we  think  it  best  at  this  stage  to  go 
no  farther,  but  to  await  the  effect  of  a  conference  be- 
tween the  parties,  which,  whatever  the  outcome,  must 
take  place.  .  .  .  This  case  is  one  that  calls  for  for- 
bearance upon  both  sides.  Great  States  have  a  temper 
superior  to  that  of  private  litigants,  and  it  is  to  be 
hoped  that  enough  has  been  decided  for  patriotism, 
the  fraternity  of  the  Union,  and  mutual  consideration, 
to  bring  it  to  an  end."  (State  of  Virginia  vs.  State 
of  West  Virginia,  220  U.  S.,  i,  27,  36.) 

The  Union  has  existed  for  one  hundred  and  twenty- 
seven  years  since  the  Supreme  Court  was  originally 
endowed  with  jurisdiction  in  controversies  between 
States.  Some  of  our  States  are  thousands  of  miles 
distant  from  each  other,  and  all  are  diverse  from  each 
other  in  climate,  in  racial  composition,  in  tradition,  and 
in  their  social  and  economic  interests.  Though  the 
jurisdiction  of  the  Court  was  not  largely  resorted  to 
prior  to  the  Civil, War — doubtless  on  account  of  the 
acute  nature  of  all  questions  relating  to  States'  rights 
growing  out  of  the  dispute  over  the  existence  and  exten- 
sion of  slavery — it  has  been  used  with  increasing  fre- 
quency since  that  time.  Never  yet,  however,  has  it 
been  necessary  to  compel  the  execution  of  a  judgment 
against  a  State,  rendered  by  the  Supreme  Court  in 
the  exercise  of  its  original  jurisdiction.  The  judgment 
in  the  Dred  Scott  case  alone  of  all  the  judgments 
affecting  States'  rights  and  States'  interests  rendered 


1 54  The  American  Philosophy  of  Government 

by  the  Supreme  Court  in  the  exercise  of  its  appellate 
jurisdiction,  has  met  with  State  opposition.  The  is- 
sues of  the  Dred  Scott  case  are  forever  dead,  and  are 
buried  under  constitutional  amendments.  The  Con- 
fidence of  the  people  of  the  United  States  in  its  highest 
Court  is  supreme.  They  recognize  their  responsibility 
in  upholding  it  in  its  unique  position  as  the  basis  on 
which  the  whole  fabric  of  our  institutions  rests.  The 
States  know  that  the  Court  will  do  justice  without  fear 
or  favor  in  every  case,  whether  of  private  or  public  in- 
terest. They  feel  a  pride  in  preserving  the  full  power  and 
dignity  of  the  great  tribunal  before  which  they  appear 
as  before  an  international  court  of  justice.  They  are 
devoted  to  our  Union.  It  is  therefore  but  natural 
that  decisions  of  the  Court  both  in  controversies  be- 
tween States  and  in  cases  affecting  States'  rights, 
should  have  been  voluntarily  accepted;  and  it  is  but 
reasonable  to  hope  and  expect  that  no  compulsion  will 
ever  be  necessary  in  these  quasi-international  con- 
troversies. 


A  LEAGUE  OF  NATIONS  ACCORDING  TO 
THE  AMERICAN  IDEA 


155 


A  LEAGUE  OF  NATIONS  ACCORDING  TO 
THE  AMERICAN  IDEA 

Read  before  the  Section  on  Social  and  Economic  Science  of  the 
American  Association  for  the  Advancement  of  Science,  at  the  meeting 
held  in  St.  Louis,  December  30,  1919.  Published  by  The  Advocate 
of  Peace. 

THE  so-called  * '  Covenant  of  the  League  of  Nations" 
has  the  form  of  a  treaty,  but  it  is  something 
different  from  and  more  than  a  treaty — that  is 
to  say,  it  is  a  constitution.  It  was,  in  fact,  originally 
so  called.  If  adopted,  it  would  constitute  a  new  com- 
posite body  politic  and  corporate,  which  would  be  a 
union  of  States,  of  which  the  United  States  would  be  a 
member.  This  new  body  politic  and  corporate  would 
have  a  political  and  legal  personality  distinct  from  that 
of  the  United  States.  It  would  have  a  specific  name — 
the  League  of  Nations.  It  would  manifest  its  person- 
ality through  a  common  organ,  which  would  sit  in  two 
divisions — one  called  *'the  Council,"  and  the  other  "the 
Assembly."  To  this  common  organ  the  constituent 
States  would  delegate  specific  political  and  corporate 
powers,  thereby  renouncing  the  exercise  and  wielding 
of  these  powers  to  the  common  organ.  The  act  of  rati- 
fying any  treaty  which  contains  this  "covenant"  would 
be  an  act  of  consent  on  the  part  of  the  United  States 
to  enter  into  a  union  with  foreign  States,  and  for  a 
period  of  time  more  or  less  definite  to  participate  and 
partially  submerge  its  personality  in  this  new  union. 
The  power  which  the  United  States  would  exercise  in 

157 


1 58  The  American  Philosophy  of  Government 

entering  into  and  participating  in  the  union  would  not 
be  the  treaty  power  proper,  but  the  analogous  but 
vastly  greater  power  of  union.  Specifically  the  power 
thus  exercised  would  be  the  power  of  political  union, 
the  supreme  phase  of  the  power  of  union. 

The  first  question  presented  by  the  subject  assigned 
for  this  paper — a  League  of  Nations  According  to  the 
American  Idea — therefore  is,  What  is  the  American 
Idea,  and  what  is  its  effect  upon  the  power  of  the 
United  States  to  enter  into  and  participate  in  unions 
with  foreign  States? 

The  American  Idea,  held  by  the  American  people 
from  the  foundation  of  the  American  colonies  and  ever 
since  held  by  them,  was  formulated  in  the  Declaration 
of  Independence  in  these  words: 

We  hold  these  truths  to  be  self-evident :  That  all  men  are 
created  equal ;  that  they  are  endowed  by  their  Creator  with 
certain  unalienable  rights;  that  among  these  are  life,  liberty, 
and  the  pursuit  of  happiness ;  that  to  secure  these  rights, 
governments  are  instituted  among  men,  deriving  their  just 
powers  from  the  consent  of  the  governed. 

This  statement  of  ''self-evident  truths,"  as  is  now 
generally  agreed  by  publicists  who  have  investigated 
its  sources,  is  a  summary  and  synthesis  of  the  results 
of  the  work  of  the  Protestant  theologian-lawyers  of  the 
sixteenth,  seventeenth,  and  eighteenth  centuries.  It  is 
a  translation  of  the  Ten  Commandments  of  the  Old 
Testament  and  the  Two  Great  Commandments  of  the 
New  Testament,  which  in  the  Bible  are  expressed  in 
terms  of  fundamental  divine  command  and  fundamen- 
tal divinely  imposed  duties  applicable  to  all  men,  into 
terms  of  fundamental  law  and  fundamental  rights  ap- 
pHcable  to  all  men.  The  translation  of  the  Biblical 
Commandments  into  the  fundamental  law  of  personal 


A  League  of  Nations  159 

conduct  and  the  fundamental  rights  of  men  against  men 
was  made  in  1536  by  John  Calvin,  in  the  chapter  on 
"The  Moral  Law"  of  his  ** Institutes  of  the  Christian 
Religion."  In  1594  Richard  Hooker,  in  the  first  book, 
"Concerning  Laws  and  Their  Several  Kinds  in  Gen- 
eral," of  his  "History  of  Ecclesiastical  Polity,"  derived 
from  Calvin's  principles  the  idea  of  government  by 
the  consent  of  the  governed  and  of  governments  as 
agents  of  the  governed. 

Bishop  Benjamin  Hoadly,  in  17 10,  taking  Hooker's 
argument  as  his  basis,  evolved  the  idea,  in  his  "Essay 
on  the  Origin  and  Institution  of  Civil  Government," 
of  the  unalienability  of  the  fundamental  rights  of  men, 
and  from  this  thesis  derived  the  rights  of  men  against 
governments,  and  the  duties  of  governments  to  secure 
the  unalienable  rights  of  men  against  each  other.  The 
political  doctrines  of  Calvin  and  Hooker  had  become 
the  basis  of  the  liberal  thought  of  Europe  at  the  time 
the  American  colonies  were  founded,  and  were  by  the 
American  colonists  accepted  as  self-evident  truths. 
The  British  and  American  liberals  of  17 10  accepted 
Hoadly 's  doctrine  as  completing  that  of  Calvin  and 
Hooker,  and  the  composite  doctrine  of  these  three 
philosophers  became  the  principles  of  the  British  Whig 
party  and  of  the  American  colonists.  Against  the  Tory 
and  Imperialist  reaction  in  Great  Britain,  the  Ameri- 
cans insisted  upon  their  traditional  principles,  making 
their  own  declaration  of  them,  and  successfully  main- 
tained these  principles  by  revolution. 

The  words  of  the  Declaration,  when  read  as  an  expo- 
sition of  the  legal  and  political  meaning  of  the  Biblical 
Commandments,  are  easy  to  be  understood.  The  equal 
creation  of  all  men  by  a  Common  Creator  is  taken  as 
the  prime  axiom  of  all  law  and  political  science.  The 
fundamental  duties,  imposed  by  divine  command  on 


i6o  The  American  Philosophy  of  Government 

each  man,  to  his  Creator,  to  himself,  and  to  his  neigh- 
bor evidently  necessitate  that  he  should  have  those 
rights  against  all  other  men  and  all  bodies  of  men, 
which  are  needful  to  enable  him  to  fulfill  these  duties. 
Such  rights  are  of  an  extraordinary  character.  They 
arise  not  by  the  gift  of  any  man,  but  by  ''endowment'* 
of  "the  Creator."  These  rights  not  having  arisen  from 
gift  of  any  man,  cannot  be  given  away  by  any  man. 
They  are  ''unalienable."  The  rights  which  are  needful 
to  enable  each  man  to  perform  the  duties  imposed  by 
the  Commandments  are  not  completely  specified  in  the 
Declaration,  but  it  asserts  that  "among  them"  are  the 
right  of  "life,"  the  right  of  "liberty,"  and  the  right  of 
"pursuit  of  happiness." 

The  right  of  property  is  regarded  as  a  right  which  is 
not  fundamental,  but  as  one  which  is  incidental  to  and 
limited  by  these  fundamental  rights.  Governments, 
however  instituted,  are  declared  to  be  bodies  of  men 
who  derive  their  just  powers  from  the  consent  of  the 
governed.  These  words  are  taken  from  the  formulas  of 
the  Roman  law  of  agency  and  signify  that  the  relations 
of  governments  to  the  governed  is  analogous  to  that  of 
agency  in  the  private  law.  It  is  not  said  how  govern- 
ments are  to  be  instituted,  the  statement  being  simply 
that  "governments  are  instituted  among  men."  The 
fundamental  right  of  all  governments  is  declared  to  be 
that  of  agents  of  the  governed  to  "secure"  the  funda- 
mental rights  of  all  men  by  all  reasonable  and  needful 
means  and  measures.  These  rights  being  unalienable, 
governments  can,  in  the  interests  of  the  general  security 
of  these  rights,  deprive  any  man  of  them  only  for  will- 
ful violation  of  the  equal  rights  of  others,  by  a  due 
process  estabhshed  by  a  law  consistent  with  the  funda- 
mental law  and  previously  made  by  consent  of  the 
governed. 


A|League  of  Nations  i6i 

The  American  constitutions  are  logical  applications 
of  the  fundamental  law  as  declared  in  the  Declaration  of 
Independence.  The  State  is  regarded  not  as  the  source 
of  all  law,  but  as  being  itself  subject  to  the  fundamental 
law  and  as  a  human  institution  or  agency  to  secure 
human  rights  under  this  law.  Governments,  being  bod- 
ies politic  and  corporate  and  agents  of  the  governed, 
properly  act  under  written  powers  of  attorney  given  by 
consent  of  the  people  governed,  delegating  plenary  pow- 
ers of  agency  to  secure  the  fundamental  rights  of  men, 
and  duly  limited  and  safeguarded  in  such  way  as  to  se- 
cure the  faithful  and  efficient  performance  of  the  agency. 

By  reason  of  the  universality  of  this  fundamental 
law,  which  Americans  hold  as  the  American  Idea,  the 
powers  of  all  States  and  all  governments  are  necessarily 
limited  in  all  their  relations,  including  their  relations 
to  other  States  and  governments.  For  the  protection 
of  the  fundamental  rights  of  men,  independent  States 
and  governments  may  wage  war  with  other  States.  To 
assure  the  observance  of  the  fundamental  rights  of 
their  citizens  within  the  jurisdiction  of  other  States,  or 
on  the  high  seas,  which  are  of  common  jurisdiction  to 
all  States,  they  may  enter  into  treaties  with  other 
States.  To  extend  the  area  within  which  these  funda- 
mental rights  are  secured,  they  may  properly  enter  into 
unions  with  foreign  States,  of  such  kinds  and  on  such 
terms  as  will  enable  them  all  more  perfectly  to  secure 
the  fundamental  rights  of  all  men  and  to  extend  the 
area  within  which  these  rights  are  in  fact  secured. 

Unions  of  States  may,  according  to  the  American 
Idea,  be  equal  unions,  in  which  the  States  united  are 
in  the  relation  of  equal  associates,  partners  or  cot  en- 
ants;  or  they  may  be  unequal  unions,  in  which  some  of 
the  members  are  in  temporary  subordination  to  one  or 
all  of  the  other  members. 


1 62    The  American  Philosophy  of  Government 

The  Declaration,  as  has  been  said,  does  not  require 
that  governments  should  be  instituted  by  the  governed, 
since  it  states  simply  that  "governments  are  instituted 
among  men";  and  hence  a  State  which  itself  observes 
the  fundamental  law  and  the  people  of  which  have  in- 
stituted a  government  by  consent  may  institute  a  gov- 
ernment for  peoples  which  have  not  yet  attained  to 
the  capacity  of  consent  or  to  a  knowledge  of  the  funda- 
mental law,  and  may  unite  these  peoples  to  itself  as 
States  in  unequal,  subordinate,  and  tutorial  union. 

Thus,  according  to  the  American  Idea,  a  union  of 
States  may  be  effected  in  three  ways :  By  two  or  more 
States  which  recognize  the  fundamental  law  and  secure 
fundamental  rights,  mutually  entering  into  an  agree- 
ment to  constitute  a  new  union,  as  equal  parties  and 
cotenants;  by  such  an  existing  union  and  such  a  State 
not  of  the  union  mutually  agreeing  that  the  State  shall 
be  admitted  to  the  union  as  an  equal  partner  and  co- 
tenant  under  the  constitution  of  the  union;  and  by 
such  a  union  or  State  uniting  to  itself  as  a  State  in  un- 
equal, subordinate,  and  tutorial  union  a  people  which 
has  not  yet  attained  to  the  capacity  of  consent  or  to 
knowledge  of  the  fundamental  law,  for  the  purpose  of 
educating  them  up  to  the  capacity  for  consent  and  to 
the  knowledge  of  the  fundamental  law,  in  order  ulti- 
mately to  set  them  up  when  fully  educated,  as  an  inde- 
dependent  State,  capable  of  joining  them  in  equal  union. 

For  any  State  the  act  of  entering  into  a  union  with 
foreign  States  is  of  momentous  importance.  Any  kind 
of  union  of  States  involves  each  State  in  an  intimate, 
confidential,  and  more  or  less  permanent  and  obligatory 
relationship  with  other  States  of  diverse  principles  and 
standards.  Such  a  relationship  is  particularly  difficult 
and  dangerous  for  those  States  which  have  set  up  for 
themselves  the  higher  or  the  highest  standards.     The 


A  League  of  Nations  163 

American  Idea  is  the  highest  standard  possible.  There 
is  great  danger,  since  the  United  States  is  at  present 
the  sole  custodian  and  guardian  of  the  American  Idea, 
that  in  a  political  union  the  American  Idea  might  be 
submerged  and  lost.  The  more  intimate,  confidential, 
obligatory,  and  permanent  the  relationship  is,  the  great- 
er is  the  danger  to  the  American  Idea.  Nevertheless, 
the  present  situation  of  the  world  requires  that  there 
should  be  union  of  States  to  the  greatest  extent  prac- 
ticable, and  the  United  States  must  face  the  situation 
and  fulfill  its  duty  in  this  respect. 

In  a  general  way,  it  may  be  said  that  a  League  of 
Nations — that  is,  a  general  union  of  independent  States 
on  equal  terms — according  to  the  American  Idea  would 
be  one  which  would  constitute  a  relationship  between 
them  of  as  intimate,  confidential,  obligatory,  and  per- 
manent a  character  as  is  consistent  with  each  protect- 
ing itself  and  being  protected  in  its  right  to  determine 
its  own  action  in  all  cases  according  to  its  own  ideas, 
provided  these  ideas  are  in  conformity  with  the  uni- 
versal and  fundamental  law.  A  union  of  States,  to  be 
safe,  according  to  the  American  Idea,  would  have  to  be 
under  a  written  constitution  containing  delegations  of 
power  to  appropriate  common  organs,  and  providing 
limitations  and  safeguards  upon  the  exercise  of  the 
power.  Moreover,  .to  assure  adequate  protection  of 
each  State  in  a  union  against  usurpation  of  power  by 
the  union,  the  constitution  of  each  of  the  States  of  the 
union  would  have  to  contain  provisions  adapting  the 
government  of  the  States  to  any  possible  relationship  of 
union  with  other  States. 

Before  it  will  be  possible  to  have  any  general  obliga- 
tory union  of  States,  therefore,  the  political  scientists 
and  lawyers  of  the  various  States  will  have  to  do  a  great 
amount  of  work.    First  of  all,  the  power  of  treaty  will 


1 64  The  American  Philosophy  of  Government 

have  to  be  differentiated  from  the  power  of  union.  They 
are,  in  fact,  two  different  and  distinct  powers,  having 
a  scope  and  purpose  different  from  each  other  and  gov- 
erned, therefore,  by  different  principles.  The  power  of 
treaty  should  be  confined  to  making  agreements  other 
than  those  constituting  a  personal  and  confidential  re- 
lationship between  States ;  the  power  of  union  to  making 
agreements  and  constitutional  arrangements  for  enter- 
ing into  personal  and  confidential  relations  with  other 
States.  Each  State  will  have  to  differentiate  in  its  own 
constitution  the  powers  of  union  from  the  power  of 
treaty  and  carefully  safeguard  the  exercise  of  both 
powers;  for  under  guise  of  exercising  the  treaty  power 
it  is  possible  to  precipitate  the  State  into  union. 

At  present  there  are  no  sufficient  constitutional  checks 
in  the  constitution  of  any  State  to  prevent  executives 
from  entering  into  secret  treaties,  secret  concerts,  secret 
alliances,  and  secret  unions.  There  is  no  consensus  of 
opinion  among  political  scientists  concerning  the  proper 
organs  of  the  State  to  exercise  the  power  of  treaty  or 
the  power  of  union.  Evidently  the  most  august  body  in 
each  State — ^its  legislative  assembly — is  the  proper  body 
to  be  intrusted  by  all  States  with  the  power  of  union. 
No  consensus  of  opinion  exists  concerning  the  procedure 
to  be  observed  in  entering  into  union.  Evidently  the 
solemnity  of  the  act  requires  in  each  State  that  the  act 
be  done  under  the  most  deliberate  and  solemn  proce- 
dure. No  consideration  has  yet  been  given  by  any 
State  to  the  new  constitutional  organs  and  processes 
which  have  become  necessary,  now  that  the  living  of 
States  in  constitutional  union  has  become  a  practical 
necessity  and  all  foreign  relations  are  taking  on  a 
domestic  character. 

The  Constitution  of  the  United  States  is  as  defective 
in  this  respect  as  that  of  any  other  State.    When  it  was 


A  League  of  Nations  165 

formed,  the  people  of  the  United  States  had  just  suc- 
ceeded in  withdrawing  by  revolution  from  a  political 
union  which  was  not  according  to  the  American  Idea, 
and  they  were  interested  in  establishing  their  own 
States  and  their  own  union  according  to  the  American 
Idea.  They  had  no  occasion  to  consider  the  proper  man- 
ner of  projecting  their  own  States  and  their  own  union 
into  a  greater  union.  Their  experience  had  made  them 
realize  the  danger  of  entering  into  personal  and  confi- 
dential relationship  with  foreign  States,  all  of  whom 
either  derided  or  parodied  the  American  Idea.  It  was 
evidently  thought  best  not  to  suggest  the  possibility  of 
union  with  foreign  States,  and  to  leave  the  matter  to  be 
settled  in  the  future,  when  the  occasion  should  arise. 

The  situation  of  the  world  has  not  changed  since  the 
days  of  the  Constitution.  The  political  science,  the  law 
of  nations,  and  the  general  constitutional  law  of  the 
world  are  as  yet  as  crude  and  undeveloped,  as  respects 
the  power  of  treaty  and  the  power  of  union,  as  they 
were  at  that  time.  The  ruling  classes  still  deride  the 
American  Idea  or  parody  it  in  terms  of  the  French  Dec- 
laration of  the  Rights  of  Man.  Now,  as  then,  all  States 
which  are  honestly  intentioned,  and  the  United  States 
in  particular,  will  avoid  all  projects  of  unions  containing 
provisions  obligating  the  member  States  to  act  other- 
wise than  according  to  their  judgments  and  consciences. 
A  union  on  any  terms  less  liberal  than  these  would 
change  the  constitution  of  every  State  which  entered 
into  it  and  would  require  to  be  entered  into  by  the  pro- 
cess of  constitutional  amendment. 

The  so-called  Covenant  of  the  League  of  Nations 
contains  several  provisions  which  are  likely  to  result  in 
infringement  upon  the  powers  of  each  member  State 
to  act  according  to  its  reason  and  conscience,  and  some 
which  actually  do  infringe  upon  those  powers.     The 


1 66  The  American  Philosophy  of  Government 

plan  of  the  League  seems  to  be  a  composite.  In  part 
it  seems  to  be  taken  from  the  plan  of  the  * '  Covenanted 
Leagues"  of  individuals,  which  prevailed  openlj'-  and 
secretly  in  Europe  some  centuries  ago,  whereby  the 
members  bound  themselves  by  oath  to  each  other  and 
to  the  ruling  council  to  maintain  and  propagate  a  re- 
ligious faith  and  a  form  of  political  organization,  with 
the  object  of  placing  civil  government  under  ecclesias- 
tical control.  In  part  it  seems  to  be  drawn  from  that 
applied  by  Spain  and  England  in  the  sixteenth  and 
seventeenth  centuries,  whereby  the  king  in  his  privy 
council  and  in  his  shadowy  and  inefficient  great  council, 
in  correspondence  with  the  ducal  or  provincial  councils, 
ruled  the  people  of  the  kingdom  absolutely.  The  cove- 
nanted leagues  produced  their  own  councils  of  inquisi- 
tion, absolutely  ruling  the  members  of  the  league  by 
terror  of  their  oaths.  The  conciliary  system  of  Spain 
and  England  produced  the  High  Court  of  the  Inquisi- 
tion, and  the  High  Court  of  the  Star  Chamber,  with 
their  processes  of  secret  sentence,  excommunication, 
anathema,  and  assassination,  in  contempt  of  the  funda- 
mental law  and  the  fundamental  rights  of  men. 

The  obligations  under  the  Covenant  of  the  League 
of  Nations  are  opposed  to  the  American  Idea  in  at 
least  the  following  respects: 

First.  The  Council  and  the  Assembly  are  said  to 
have  the  function  of  ''advising"  the  member  States; 
but  in  giving  this  advice  they  are  not  required  to  ob- 
serve the  fundamental  law  or  any  principles  whatever. 
The  member  States  "covenant"  to  follow  the  "advice." 
"Advice"  given  by  one  person  to  another  who  is  obli- 
gated on  oath  to  follow  the  so-called  "advice"  is  com- 
mand, not  advice.  When  no  principles  are  laid  down 
as  obligatory  on  the  adviser,  and  the  person  advised 
binds  himself  to  follow  the  advice,  the  power  of  so- 


A  League  of  Nations  167 

called  "advice"  is  the  power  of  absolute  command,  in 
disregard  of  the  fundamental  law. 

Second.  The  Covenant  defines  aggression  and  wrong- 
doing in  terms  of  warlike  action,  whereas  the  only  ag- 
gression recognized  by  the  fundamental  law  is  that 
which  occurs  when  States  or  governments  deprive  pe 
sons  of  their  fundamental  rights  without  due  process 
of  law.  Such  aggression,  and  such  only,  is  an  aggres- 
sion against  all  other  States.  Each  State  may  properly 
protect  itself  against  such  an  aggressor  State,  by  war  if 
necessary;  and  all  States  are  in  duty  bound,  under  the 
fundamental  law,  to  correct  by  their  joint  influences 
and  strength  such  an  aggressor  State.  To  regard  a 
State  which  makes  war  on  such  an  aggressor  State  as 
the  real  aggressor  is  to  render  the  League  an  agency  of 
perversion  and  injustice. 

Third.     The  Covenant  places  the  power  to  direct 

the  activities  of  right-doing  States  and  to  correct  the 

activities  of  wrong-doing  States  in  the  same  body  of 

men — an  arrangement  which  in  fact  makes  this  body 

of  men  at  once  a  legislature,  a  court,  and  an  executive. 

Such  a  combination  of  functions  in  one  person  or  body 

invariably  results  in  absolute  government.     The  fact 

that  the  League  provides  for  a  Council  and  Assembly 

is  of  no  consequence,  since  in  each  of  them  the  two 

functions  are  similarly  confused. 

/     Assuming,  therefore,  that  the  proposed  "League  of 

/  Nations"  is  impossible  according  to  the  American  Idea, 

\the  question  arises :    What  kind  of  a  league  of  nations, 

or  general  union  of  States,  is  now  possible,  as  a  matter 

rof  practical  politics,  according  to  this  idea?     It  seems 

;    clear  that  the  only  such  league  is  a  general  union  of 

States  for  mutual  counsel,  \n  which  the  member  States 

\   assume  no  political  obligations  and  in  which  each  is  free 

^  to  act  according  to  its  reason  and  conscience.     That  this 


1 68   The  American  Philosophy  of  Government 

is  possible  and  practicable  is  shown  by  the  fact  that  the 
United  States  is  a  member  of  two  such  unions.  One  of 
them  is  the  Union  of  the  American  Republics,  whose 
organ  is  the  Pan-American  Union,  located  in  Washing- 
ton. The  other  is  the  general  union  of  States,  as  yet 
imnamed,  commonly  called  the  Hague  Union.  This 
imion  is  in  fact,  though  not  in  law,  constituted  by  the 
Convention  for  the  Peaceful  Settlement  of  International 
Disputes,  formulated  by  the  Hague  conferences.  Its 
organs,  located  at  The  Hague,  are  the  Permanent  Court 
of  Arbitration,  the  Permanent  Administrative  Coimcil, 
and  the  International  Bureau. 

The  union  of  the  American  Republics  was  initiated 
by  the  Congress  of  the  United  States  in  1888,  after  the 
idea  had  been  incubated  for  sixty  years.  By  act  of 
Congress  delegates  of  the  American  States  were  invited 
to  assemble  at  Washington,  on  a  date  fixed,  as  guests 
of  the  United  States.  The  object  of  the  Conference,  as 
originally  projected,  was  **to  consider  such  questions 
and  recommend  such  measures  as  shall  be  to  the  mu- 
tual interest  and  common  welfare  of  the  American 
States."  The  Congress  limited  it  to  discussion  of  arbi- 
tration and  improvement  of  commercial  relations.  The 
invitation  included  a  program  of  subjects  to  be  dis- 
cussed, but  the  first  was  "measures  that  shall  tend  to 
preserve  the  peace  and  promote  the  prosperity  of  the 
American  States."  Thus  a  way  was  provided  for  con- 
sidering at  any  conference  any  matter  deemed  desirable 
for  discussion  by  the  majority. 

The  Pan-American  Union  is  a  committee  of  continua- 
tion of  the  conferences.  The  conferences,  with  their 
bureau  of  continuation,  constitute  the  union.  A  writ- 
ten constitution  formed  by  the  conferences  has  been 
drafted,  but  not  adopted.  The  Hague  Union  is  formed 
in  substantially  the  same  way.    The  President  accepted 


A  League  of  Nations  169 

the  invitation  to  participate  in  the  conferences.  The 
Convention  for  the  Pacific  Settlement  of  International 
Disputes  does  not  purport  to  be  a  written  constitution 
of  the  Union,  although  it  institutes  the  common  organs. 
The  lack  of  a  continuation  committee  and  the  absence 
of  a  corporate  name  render  the  union  imperfect.  The 
program  of  The  Hague  Conferences  has  been  limited  to 
the  subject  of  the  settlement  of  international  disputes. 
Because  of  this  unnecessary  and  undesirable  restriction, 
The  Hague  Union  has  accomplished  little.  The  Union 
of  the  American  Republics,  with  its  more  liberal  pro- 
gram, has  accomplished  much  for  the  general  welfare  of 
the  States  concerned.  Neither  of  these  political  unions 
involves  any  political  obligations  on  the  part  of  any 
member  State.  The  object  of  both  unions  is  to  reach 
an  agreement  of  opinion,  sentiment,  and  purpose  on 
certain  subjects  of  mutual  interest,  and  to  embody  the 
agreements  in  formal  resolutions  or  in  international  con- 
ventions, leaving  the  member  States  free  to  act  accord- 
ing to  their  own  consciences  and  judgments. 

A  League  of  Nations,  according  to  the  American 
Idea,  would  undoubtedly  be  one  modeled  on  the  plan 
of  the  Union  of  American  Republics.  It  would  have 
for  its  object  to  hold  periodical  conferences  "to  consider 
such  questions  and  recommend  such  measures  as  shall 
be  to  the  mutual  interest  and  common  welfare"  of  all 
the  States  and  unorganized  or  partly  organized  peoples. 
It  would  have  as  its  organ  a  continuation  committee 
of  common  consultation  and  counsel,  to  collect  infor- 
mation, to  make  recommendations,  and  to  adjust  the 
program  of  each  conference.  Each  conference  would, 
however,  be  free  to  consider  whatever  measures 
the  majority  should  deem  needful  "to  preserve  the 
peace  and  promote  the  prosperity"  of  all  the  States 
and  peoples  concerned.     Under  such  a  union  no  po- 


1 70    The  American  Philosophy  of  Government 

litical  obligation  would  be  assumed.  Each  State  would 
hold  to  its  own  idea,  and  in  the  competition  of  ideas 
the  American  Idea,  by  reason  of  its  sound  basis 
and  its  success  as  applied  in  the  United  States  in 
bringing  about  peace  and  prosperity,  would  tend  to 
prevail. 

By  such  a  league  of  mutual  counsel,  under  the  lead 
of  the  United  States,  a  new  part  of  the  law  of  nations, 
according  to  the  American  Idea,  would  gradually  be 
evolved,  based  on  the  analogies  drawn  from  the  part  of 
the  private  law  which  is  concerned  with  the  personal 
and  confidential  relations  of  men — the  law  of  agency 
and  trust,  of  copartnership,  of  cotenancy,  of  patron 
and  apprentice,  of  guardian  and  ward.  As  the  law  was 
evolved,  the  relation  of  the  States  to  each  other  and  the 
relations  of  all  States  to  the  peoples  not  yet  of  full 
political  capacity  would  tend  to  have  less  of  a  foreign 
and  more  of  a  domestic  character,  and  the  States 
would  gradually  provide  themselves  with  organs  of 
mutual  correspondence  with  the  union  and  with  each 
of  the  other  States,  adapted  to  the  new,  difficult,  and 
delicate,  but  highly  desirable,  relationship. 

When  such  a  law  of  nations  has  been  evolved  and 
accepted,  defining  the  social  rights  and  duties  of  States ; 
when  such  institutions  of  mutual  correspondence  shall 
have  been  established;  when  all  the  States  have  adopted 
written  constitutions  according  to  the  American  Idea, 
in  which  suitable  and  scientific  provisions  concerning 
the  power  of  treaty  and  the  power  of  union  are  inserted, 
a  League  of  Nations  in  which  each  State  would  obligate 
itself  to  observe  the  law  of  nations  might  be  possible. 
Such  a  league,  though  likely  to  be  formed  only  in  the 
distant  future,  would  be  according  to  the  American 
Idea.  When  a  formal  constitution  of  such  a  league 
shall  be  drafted  by  a  constitutional  convention  of  all 


A  League  of  Nations  171 

States,  the  United  States  may  enter  it  without  amend- 
ing its  Constitution ;  for  the  law  of  nations,  based  on  the 
American  Idea,  is  a  part  of  the  Constitution  of  the 
United  States. 


THE   POSITION  OF  THE  JUDICIARY   IN 
THE  UNITED  STATES 


173 


THE  POSITION  OF  THE  JUDICIARY  IN 
THE  UNITED  STATES 

Reprinted  from  The  Annals  of  the  American  Academy  of  Political  and 

Social  Science,  September,  1912.     The  Initiative,  Referendum 

and  Recall 

AT  the  present  time  two  circumstances  are  directing 
public  attention  to  the  position  which  the  ju- 
diciary holds  in  the  American  political  system. 
The  initiative,  the  referendum  and  the  recall  are  extend- 
ing widely,  and  the  prospect  is  that  they  will  soon  be- 
come prevalent  throughout  our  states.  It  is  clear  that 
if  these  methods  of  controlling  governmental  action  by 
popular  vote  should  be  carried  sufficiently  far,  they 
might  be  used  so  as  to  extinguish  the  power  which  our 
courts  have  to  treat  as  void  any  governmental  action 
which  is  in  excess  of  the  powers  granted  by  our  written 
constitutions.  At  the  same  time  that  the  position  of 
our  judiciary  is  thus  endangered  by  the  coming  of  these 
new  forms  of  political  action,  its  position  has  been 
seriously  weakened,  in  the  eyes  of  many  of  our  best 
citizens,  by  its  own  action  in  exercising  its  power  to 
hold  laws  unconstitutional.  It  is  probably  true  that 
some  of  our  courts  have  exercised  this  power  in  a  retro- 
gressive manner;  that  is,  in  such  a  way  as  to  interfere 
with  the  people  in  their  proper  development  and  prog- 
ress, and  with  the  nation  in  its  fair  competition  with 
foreign  nations.  Thus  the  position  of  our  judiciary  in 
our  political  system  is  at  the  same  time  endangered 
from  without  and  from  within.    If  it  be  true  that  our 

175 


176   The  American  Philosophy  of  Government 

courts  are  proving  themselves  unable  properly  to  per- 
form the  high  and  extraordinary  functions  which  we 
have  laid  upon  them,  those  who  advocate  the  extension 
of  the  initiative,  the  referendum  and  the  recall  are  en- 
titled to  be  heard  with  attention.  If  our  system  is  sound, 
and  is  merely  operating  badly  for  the  moment  on  account 
of  some  specific  defect  or  ambiguity  in  our  constitutions, 
or  because  we  are  passing  through  some  temporary 
social  or  economic  phase  or  condition,  or  because  of 
the  too  great  rigidity  of  the  legal  mind  as  now  trained, 
the  initiative,  the  referendum  and  the  recall  as  remedies 
for  the  difficulty  must  be  considered  along  with  other 
possible  remedies.  If  it  be  true  that  our  system  has 
broken  down  by  reason  of  the  inability  of  our  courts  to 
bear  the  burden  placed  on  them,  the  next  most  feasible 
plan  is  that  of  * 'responsible  government"  under  an  un- 
written constitution,  as  it  exists  in  other  countries,  and 
to  this  the  initiative,  the  referendum  and  recall,  if 
applied  in  a  wide  sense,  seem  necessarily  to  lead. 

It  therefore  becomes  necessary  to  examine  the  philo- 
sophical and  legal  basis  on  which  our  system  rests,  and 
to  make  up  our  minds  whether  our  system  is  reasonable 
and  practicable  and  as  good  as  or  better  than  any  other. 
If  we  conclude  that  it  is,  and  that  therefore  the  func- 
tions which  we  have  given  our  courts  are  reasonable 
and  capable  of  being  properly  performed  by  them 
under  all  prdinary  circumstances,  it  will  be  necessary 
to  attempt  to  discover  the  reason  why  some  of  them 
have  happened  to  make  the  decisions  which  are  regarded 
as  retrogressive.  If  we  succeed  in  discovering  these 
reasons,  it  will  particularly  be  necessary  to  consider 
how  far  the  initiative,  the  referendum  and  the  recall 
can  be  used,  if  they  can  be  used  at  all,  as  a  means  of 
remedying  any  aberrations  of  our  courts  in  performing 
their  superintending  and  nuUifying  functions. 


Position  of  the  Judiciary  177 

An  attempt  will  first  be  made,  therefore,  to  state 
the  philosophical  and  legal  basis  on  which  our  system 
rests.  The  simplest  way  seems  to  be  to  state  the  propo- 
sitions of  poHtics  and  law  which  underHe  our  system, 
beginning  with  the  most  fundamental  and  proceeding 
by  successive  steps  to  the  various  derivative  proposi- 
tions, illustrating  each,  so  far  as  space  will  permit,  by 
reference  to  historical  facts. 

The  fundamental  proposition  upon  which  our  system 
rests,  as  it  would  appear,  is,  that  governments  are  the 
agents  of  the  governed.  There  are,  as  history,  experi- 
ence, and  philosophy  show,  in  the  last  analysis,  only 
three  forms  of  government — the  patriarchal  form,  the 
agency  form,  and  the  imperial  form.  In  the  patriarchal 
form  governmental  power  is  conceived  of  as  derived 
from  a  source  external  to  the  people  governed,  that  is, 
from  God,  and  is  devolved  from  above  downward  upon 
subordinate  officers  and  subjects.  In  the  agency  form, 
governmental  power  is  conceived  of  as  derived  from 
the  people  governed,  who  delegate  limited  powers  to 
officers  who  are  neither  above  nor  below  the  people, 
but  are  on  an  equality  with  the  people  as  contracting 
parties  and  agents.  In  the  imperial  form,  all  power  is 
conceived  of  as  derived  from  the  people  governed,  who 
are  assumed  to  have  conveyed  all  their  powers  to  a 
ruler  or  government,  so  that  the  ruler  or  government 
thus  has  a  power  equally  absolute  with  that  of  a  patri- 
arch and  devolves  his  or  its  power  from  above  down- 
wards upon  subordinate  officers  and  subjects. 

When,  therefore,  it  is  said  that  our  system  depends 
upon  our  acceptance  of  the  proposition  that  govern- 
ments are  the  agents  of  the  governed,  it  is  the  same  as 
saying  we  have  chosen  to  adopt  the  agency  system  of  gov- 
ernment and  have  not  allowed  ourselves  to  be  subjected 
to  the  patriarchal  system  or  to  the  imperial  system. 


178   The  American  Philosophy  of  Government 

It  becomes  important,  therefore,  to  inquire  what  is 
necessarily  involved  in  the  acceptance  of  this  funda- 
mental proposition — that  is,  to  inquire  what  are  the 
fundamental  principles  of  agency.  About  this  there  is 
no  difficulty.  Agency  is  one  of  the  most  common  and 
necessary  of  human  relations.  The  fundamental  prin- 
ciples of  agency  have  been  settled  for  at  least  fourteen 
centuries.  These  principles  were  summed  up  in  the 
civil  law  by  two  maxims.  The  first  of  these  was, 
Ohligatio  mandati  consensu  contrahentium  consistit;  a 
translation  of  which  is,  "The  powers  of  an  agent  are 
derived  from  the  consent  (or  agreement)  of  the  con- 
tracting parties."  The  second  was,  Rei  turpis  nullum 
mandatum  est;  a  translation  of  which  is,  "There  can 
be  no  agency  to  do  an  unjust  (or  wrongful)  act."  The 
meaning  of  these  two  maxims  is,  that  the  agent  has 
no  powers  except  those  delegated  to  him  by  the  prin- 
cipal and  accepted  by  the  agent  in  the  agreement  of 
agency  made  between  them,  and  that  any  acts  done  by 
the  agent  in  excess  of  these  powers  are  void  as  to  the 
principal ;  that  even  if  the  agent  acts  within  the  powers 
thus  delegated  to  and  accepted  by  him  and  agreed  to  by 
both  parties,  yet  if  in  so  acting  he  does  an  unjust  or 
wrongful  act  to  any  one, — as  distinguished  from  an  act 
of  negligence, — the  wrongful  act  is  in  excess  of  his 
powers,  and  is  void  as  to  the  principal;  and  that  even 
if  the  principal  and  the  agent  agree  that  the  agent  shall 
have  power  to  do  wrong  or  injustice,  the  agreement  is 
void  as  a  contract  of  agency  and  operates  only  to  make 
the  principal  a  wrong-doer  jointly  with  the  agent,  in 
case  the  agent  does  the  wrong  or  injustice.  When  we 
say,  therefore,  that  our  political  system  is  based  on  the 
agency  theory,  we  mean  that  our  governments  have  no 
powers  except  those  which  are  delegated  to  them  by  the 
people  and  accepted  by  the  governments  by  acceptance 


Position  of  the  Judiciary  1 79 

of  office,  and  which  are  agreed  to  between  the  peoples 
and  the  governments;  that  even  if  our  governments 
act  strictly  within  the  letter  of  the  powers  granted, 
they  have  no  power  in  exercising  those  powers  to  do 
injustice  to  any  one;  and  that  if  the  people  should  at- 
tempt to  delegate  to  any  of  our  governments  a  power  to 
do  injustice,  the  attempted  delegation  of  power  would 
be  void,  and  the  governments  would  have  no  power  to 
do  injustice. 

The  first  great  public  document  in  which  this  theory 
was  foreshadowed  was  Magna  Charta.  This  great 
charter,  granted  by  King  John  to  the  Barons  in  12 15, 
was  made,  however,  under  such  circumstances  and  was 
couched  in  such  language  that  it  required  interpreta- 
tion. In  subsequent  confirmatory  charters  granted  by 
the  English  kings  to  the  people  by  act  of  parliament, 
these  principles  gradually  became  more  clearly  stated. 
The  Reformation,  by  emphasizing  the  importance  of 
the  individual  and  his  direct  relationship  to  God,  gave 
a  wide  extension  to  the  idea  that  all  institutions,  in- 
cluding the  institutions  of  government  and  church,  are 
for  the  benefit  of  the  individual;  and  it  was  a  natural 
and  necessary  conclusion  that  all  the  persons  concerned 
in  the  management  of  institutions  and  the  institutions 
themselves  were  agents  of  those  for  whose  benefit  they 
existed.  The  people  of  Continental  Europe,  however, 
long  accustomed  to  regard  themselves  as  members  of 
clans  or  armies,  and  to  regard  the  head  of  their  nation 
as  invested  with  patriarchal  or  imperial  power,  were  not 
able  to  apply  this  theory  successfully  against  the  oppo- 
sition of  those  attached  by  conviction  or  interest  to  the 
patriarchal  or  imperial  theory. 

The  principle  that  governments  are  the  agents  of  the 
governed  was  recognized  in  the  charter  granted  by  the 
king  in  council  to  the  Massachusetts  Bay  Colony  in 


i8o  The  American  Philosophy  of  Government 

1629.  By  that  charter  it  was  provided  that  the  free- 
men of  the  colony  should  meet  in  general  court  every 
three  months,  and  that  at  one  of  these  courts,  called 
the  court  of  election,  all  the  officers  of  the  colony  should 
be  elected.  In  the  Massachusetts  Body  of  Liberties 
of  1 64 1,  this  system  was  established  by  statutory  pro- 
vision, and  it  was  also  arranged  that  officials  might  be 
recalled  for  cause  at  any  of  the  general  courts  other  than 
the  court  of  election  by  majority  vote  upon  cause  shown. 

The  same  right  of  the  citizens  of  the  colonies  to  elect 
all  their  own  officers  was  recognized  in  the  Rhode 
Island  charters  of  1643  and  1663,  and  in  the  Connecticut 
charter  of  1662.  The  colonies  regarded  these  charters 
as  the  ones  which  really  expressed  the  full  extent  of 
their  political  rights,  though  other  colonial  charters  pro- 
vided for  appointment  of  the  governor,  and  in  some 
cases  the  governor  and  upper  house,  by  the  King  of 
Great  Britain  in  council. 

The  Continental  Congress  was  from  the  outset  a 
congress  of  agents  of  the  colonies.  When  that  congress 
adopted  the  Declaration  of  Independence,  it  committed 
the  United  States  for  all  time  to  the  agency  theory. 
It  was  declared  that  governments  are  instituted  among 
men  for  the  benefit  of  the  individual  and  primarily  to 
protect  and  preserve  each  individual  in  the  reasonable 
exercise  of  those  attributes  of  life,  motion,  and  pre- 
hension which  are  common  to  all  human  beings  and 
which  are  essential  to  the  existence  of  every  human 
being.  It  was  declared  that  each  individual  has  a 
divine  right,  by  reason  of  the  fact  that  all  are  equally 
created  by  God  with  these  attributes,  to  life,  liberty 
(motion)  and  the  pursuit  of  happiness  (prehension). 
"To  secure  these  (divine)  rights"  of  the  individual,  the 
Declaration  asserts,  ''governments  are  instituted  among 
men,"  evidently  meaning  either  by  their  consent  or  by 


Position  of  the  Judiciary  i8i 

external  force.  However  governments  may  be  insti- 
tuted, whether  by  consent  or  force,  the  Declaration 
declares,  they  are  the  agents  of  the  governed.  The 
words  are:  "That  to  secure  these  rights,  governments 
are  instituted  among  men,  deriving  their  just  powers 
from  the  consent  of  the  governed."  This  clearly  means 
that  governments  have  no  power  to  do  any  unjust  acts, 
and  that  all  their  powers  to  do  just  acts  are  derived 
from  the  agreement  of  agency  between  the  government 
and  the  governed.  The  expression  "deriving  their  just 
powers  from  the  consent  of  the  governed  "  seems  clearly 
to  be  a  combination  of  the  two  maxims  of  the  law  of 
agency  above  quoted,  that  the  powers  of  an  agent  are 
derived  from  the  consent  (or  agreement)  of  the  con- 
tracting parties,  and  that  there  can  be  no  agency  to  do 
an  act  which  is  unjust  or  wrongful  to  anyone. 

The  second  proposition  on  which,  as  it  would  appear, 
our  system  is  based,  and  which  is  a  derivative  from  the 
first,  is,  that  states  are  corporations.  If  governments 
are  the  agents  of  the  governed,  the  whole  organization 
consisting  of  the  government  and  the  governed  per- 
manently operating  together  as  one  mechanism  or 
body,  is  an  artificial  person  or  corporation.  The  people 
governed  are  in  this  view  the  members  of  the  corpora- 
tion, and  the  government  the  officers  and  board  of 
directors  of  the  corporation. 

The  principles  of  the  law  of  corporations  are  those  of 
the  law  of  agency.  The  corporation,  regarded  as  an 
artificial  and  legal  person,  is  the  agent  of  its  members. 
Its  powers  are  those  which  are  agreed  to  between  it 
and  the  members ;  the  members  delegate  specific  powers 
to  the  corporation,  and  the  corporation  accepts  them. 
The  corporation  has  no  powers  except  those  delegated 
by  the  members,  and  even  if  it  acts  within  the  letter 
of  those  powers  it  has  no  power  to  do  an  act  which  is  un- 


1 82   The  American  Philosophy  of  Government 

just  or  wrongful  to  any  one.  Any  act  of  a  corporation 
in  excess  of  its  powers  is  void.  Even  if  the  incor- 
porators or  the  state  should  attempt  to  give  the  corpo- 
ration power  to  do  injustice  to  any  one,  such  attempted 
delegation  would  be  void,  and  the  corporation  would 
have  no  power  to  do  injustice. 

Prior  to  the  Reformation  the  conception  of  a  number 
of  persons  united  for  a  common  purpose  under  a  govern- 
ing body  of  agents  selected  by  them,  as  an  artificial 
person  which  was  itself  the  agent  of  the  members  of 
the  corporation,  though  not  unknown,  was  little  under- 
stood or  applied.  Religious,  charitable  and  educational 
corporations  existed,  but  cities,  towns  and  trade-guilds 
furnished  the  principal  examples  of  political  or  indus- 
trial corporations.  So  far  as  there  was  anything  cor- 
responding to  the  modern  territorial  state,  it  was  not 
conceived  of  as  a  corporation,  but  as  a  family  or  clan. 
The  city-states  and  small  republics  of  Europe,  however, 
to  some  extent  recognized  themselves  as  corporations. 
The  possibility  of  regarding  territorial  communities  as 
corporations  was  also  made  manifest  when  the  republics 
of  Venice  and  Genoa,  in  the  fourteenth  and  fifteenth 
centuries,  chartered  corporations  for  trading  and  bank- 
ing purposes  with  powers  of  government  over  the  colo- 
nies of  merchants  on  the  shores  of  the  Black  and  ^gean 
seas.  This  practice  was  soon  followed  by  France,  Hol- 
land and  England.  It  only  needed  that  the  colony 
should  grow  strong  enough  to  control  the  corporation 
for  the  colony  to  consider  itself  as  the  corporation  and 
to  elect  its  own  officers.  The  idea  of  a  "common- 
wealth," or  a  corporation  on  a  fixed  territory  having 
for  its  purpose  the  common  weal  of  the  persons  there 
residing  and  inhabiting,  was  the  logical  result  of  the 
social,  economic,  political  and  religious  ideas  and 
theories  which  the  Reformation  brought  forth.    Grant- 


Position  of  the  Judiciary  183 

ing  that  the  development  of  the  individual  is  the  im- 
portant thing  to  be  considered  both  in  theology  and 
politics,  and  that  all  institutions  are  for  this  purpose, 
it  follows  that  it  is  not  only  the  right  but  the  duty  of 
each  individual  to  assist  in  molding  the  institutions 
which  are  for  his  benefit.  By  conceiving  of  a  group  of 
persons  united  for  a  common  purpose  as  a  personality 
outside  of  and  distinct  from  them  all,  and  as  the  agent 
of  all,  the  institution  was  brought  under  the  control 
of  the  group,  the  artificial  personality  being  the  agent 
of  the  group. 

At  the  time  the  colonization  of  New  England  began 
in  1 62 1,  the  corporation  theory  of  the  state  was  just 
beginning  to  take  strong  root  in  England.  This  theory 
was  opposed  by  the  ruling  classes  as  a  whole,  though 
some  of  the  nobility  and  a  great  part  of  the  well-to-do 
farmers  and  professional  men  believed  in  it.  Those  who 
emigrated  from  England  to  America  at  this  time  did  so 
because  they  believed  that  governments  are  and  of 
right  ought  to  be  the  agents  of  the  governed,  and  that 
states  are  and  of  right  ought  to  be  corporations.  In 
the  ''Mayflower  Compact"  of  1621,  entered  into  be- 
tween the  members  of  the  colony  which  afterwards 
settled  in  Plymouth,  Massachusetts,  the  colonists  "cove- 
nanted and  combined"  themselves  into  "a  civil  body 
politic"  for  their  ''better  ordering  and  preservation." 
The  charter  of  the  Massachusetts  Bay  Colony  of  1629 
provided  that  the  persons  named  and  their  associates 
should  be  a  "body  corporate  and  politic."  The  people 
of  Connecticut  by  their  "Fundamental  Orders"  in  1638 
"associated  and  conjoined"  themselves  as  a  "public 
state  and  commonwealth. "  In  1 641 ,  the  Commissioners 
to  Regulate  the  Colonies  appointed  by  the  Lords  and 
Commons  after  Charles  I  had  refused  to  act  with  them 
on  account  of  their  insistence  on  the  agency  theory  of 


1 84  The  American  Philosophy  of  Government 

government,  granted  to  Roger  Williams  and  his  asso- 
ciates at  Providence  Plantations  "a  free  charter  of  civil 
incorporation  and  government"  by  which  the  colony 
was  given  the  name  of  "The  Incorporation  of  Provi- 
dence Plantations."  The  charter  of  Connecticut  of 
1662  declared  that  the  persons  named  and  their  asso- 
ciates should  constitute  *'one  body  incorporate  and  poli- 
tic," and  the  same  language  was  used  in  the  Rhode 
Island  charter  of  1663.  In  all  these  charters  provision 
was  made  for  election  of  all  the  officials  by  the  members 
of  the  corporation,  and  these  colonies  were  treated  by 
the  English  government  as  English  corporations.  This, 
however,  the  colonies  contested.  They  claimed  that 
they  were  American  corporations,  and  states,  created 
by  the  voluntary  act  of  the  members,  and  that  the 
charters  granted  by  the  English  government  were  mere 
authentications  or  approvals  of  the  voluntary  union  of 
the  colonists.  In  this  they  were  in  accord  with  the 
trend  of  modern  thought.  More  and  more  it  is  begin- 
ning to  be  realized  that  corporations  are  created  by  the 
act  of  the  members  and  not  by  the  act  of  the  state,  and 
that  when  the  state  ''grants"  a  charter  of  incorporation 
its  act  is  in  legal  effect  merely  an  act  of  authentication 
and  approval  for  reasons  of  convenience,  and  not  in  a 
true  and  real  sense  of  grant  of  corporate  powers.  It  is 
on  account  of  the  realization  of  this  fact  that  progressive 
states  now  allow  corporations  to  organize  themselves 
under  general  laws. 

After  the  colonies  became  independent,  the  idea  that 
they  were  at  once  states  and  corporations  was  uni- 
versally accepted  and  acted  upon. 

The  third  proposition  on  which  the  American  system, 
as  it  would  appear,  is  based  is,  that  corporations  may 
be  formed  of  corporations.  This  proposition  is  now  a 
famiHar  one  to  us  in  the  industrial  and  social  as  well 


Position  of  the  Judiciary  185 

as  in  the  poHtical  world.  As  a  corporation  is  a  legal 
person,  there  is  no  reason  why  it  cannot  be  a  member 
of  a  corporation.  The  idea  that  a  corporation  may 
with  other  corporations,  or  even  with  other  natural 
persons,  form  a  corporation,  is  now  so  familiar  to  us  as 
to  be  a  commonplace.  The  modern  ''trusts"  for  indus- 
trial purposes  and  the  modern  "federations"  of  trades 
unions  or  other  corporations  for  social  purposes,  are 
made  up  of  corporations  as  members.  A  holding  or 
"trustee"  or  "federating"  corporation  is  created  by 
the  combining  corporations  which  is  given  federal  powers 
for  the  common  purposes.  The  whole  organization  con- 
stitutes a  corporation  composed  of  corporations. 

The  conception  of  a  corporation  composed  of  corpor- 
ations which  should  also  be  a  state,  was  first  worked 
out  or  at  least  foreshadowed  by  an  arrangement  between 
the  colonies  of  Massachusetts  Bay,  Plymouth,  Connecti- 
cut and  New  Haven,  made  in  1643,  when  England  was 
paralyzed  by  civil  war  and  the  colonies,  surrounded  by 
enemies,  were  thrown  on  their  own  resources.  These 
four  colonies  entered  into  a  "Consociation"  or  "Con- 
federation," declaring  that  they  did  so  "for  mutual  help 
in  our  common  concerns,  that  as  in  nation  and  religion 
so  in  other  respects  we  be  and  continue  one."  The  new 
federal  corporation,  by  the  name  of  "The  United  Colo- 
nies of  New  England,"  was  governed  by  a  board  of 
eight  commissioners,  two  from  each  colony;  the  board 
having  power,  by  a  three-fourths  vote,  to  bind  the 
whole  federal  corporation  and  state  for  certain  specified 
purposes.  This  corporation  composed  of  corporations 
continued  in  existence  and  operation  for  over  thirty 
years,  dealing  with  the  common  interstate  concerns  of 
these  four  colonies  and  with  their  foreign  interests, 
without  much  interference  from  England. 

From  1690  forward  various  schemes  were  proposed 


1 86  The  American  Philosophy  of  Government 

for  federating  the  American  colonies  so  as  to  form  one 
federal  corporation  or  state  either  under  Great  Britain 
or  in  federation  with  that  state.  Among  others,  William 
Penn  in  1697  formulated  a  very  definite  and  complete 
plan.  None  of  the  plans  for  this  purpose,  however, 
was  acceptable,  but  an  arrangement  was  devised  which, 
as  it  evolved,  resulted  in  uniting  the  colonies  and  Great 
Britain  into  one  corporation  or  state,  which  the  colonies 
regarded  as  a  corporation  composed  of  corporations, 
to  which  the  name  "the  British  Empire"  became 
attached.  From  1696  until  1765,  there  existed  in 
England  a  governing  tribunal  for  the  common  purposes 
of  Great  Britain  and  the  colonies  which  was  made  up 
of  members  of  the  King's  Privy  Council.  This  tribunal 
was  called  "the  Committee  of  the  Privy  Council  for 
Plantation  Affairs"  and  was  assisted  by  a  subordinate 
body  called  "the  Commissioners  for  Trade  and  Planta- 
tions." The  whole  British  Empire,  composed  of  Great 
Britain  and  the  colonies  was,  as  matter  of  fact,  in 
cases  arising  before  the  tribunal,  treated  as  if  it  were 
a  corporation  composed  of  corporations  and  as  if  it 
were  a  federal  state  composed  of  states;  the  state  of 
Great  Britain  being  in  fact  treated  as  the  ruling  state 
for  the  common  purposes. 

The  fourth  proposition  on  which  the  American  system 
is  based,  it  would  seem,  is,  that  to  the  convenient  and 
orderly  existence  and  operation  of  corporations,  and  of 
states  which  recognize  themselves  as  corporations,  writ- 
ten charters  or  constitutions  are  necessary.  This  is 
because  limitations  of  power  can  be  made  effective  only 
as  they  are  carefully  formulated  in  writing  and  pub- 
lished so  as  to  be  known  to  all  concerned.  As  corpora- 
tions are  by  their  definition  artificial  persons  and  agents 
with  limited  powers,  and  as  their  officers  are  agents 
oftentimes  linked  together  in  a  complex  series  of  opera- 


Position  of  the  Judiciary  187 

tions  where  there  is  a  great  division  of  labor,  it  is  essen- 
tial to  their  orderly  and  convenient  management  that 
these  limitations  of  power  should  be  formulated  in 
written  constitutions.  The  more  complicated  the  cor- 
poration the  more  necessary  the  written  formulation  of 
the  limitation  of  powers.  Hence  a  written  constitution 
is  even  more  necessary  to  a  federal  state,  which  is  com- 
posed of  states,  than  to  a  compact  state. 

The  discussion  that  was  carried  on  prior  to  the 
American  Revolution  concerning  the  limitations  of  the 
powers  of  Great  Britain  and  the  colonies  as  constituent 
elements  of  the  great  state  and  corporation  called  ''the 
British  Empire,"  called  attention  to  the  necessity  of 
written  constitutions.  It  had  long  been  recognized 
that  corporations  for  industrial  or  social  purposes  could 
not  conveniently  exist  except  under  written  charters. 
Cities  and  towns  also  had  discovered  the  necessity  of 
having  written  charters.  All  the  American  colonies 
except  Virginia  and  New  York  were  organized  under 
charters  recognizing  more  or  less  completely  their  cor- 
porate character,  and  the  colonies  had  thus  learned  to 
appreciate  the  convenience  of  having  their  fundamental 
law  contained  in  one  document.  The  study  of  the  rela- 
tions between  Great  Britain  and  the  colonies  brought 
out  the  fact  that  the  complex  corporate  and  political 
unity  called  "the  British  Empire"  was  under  a  consti- 
tution of  its  own  quite  different  from  that  of  Great 
Britain.  It  also  brought  out  the  fact  that  there  was  a 
great  difference  of  opinion  as  to  what  the  provisions  of 
the  constitution  of  the  British  Empire  were  or  ought 
to  be.  All  Americans  agreed  that  the  empire  was  an 
aggregation  of  states  under  the  headship  of  Great 
Britain,  and  that  the  powers  of  each  of  the  constituent 
states  were  limited  in  such  a  manner  that  the  whole 
British  Empire  could  hold  together  and  operate  for  the 


1 88    The  American  Philosophy  of  Government 

common  good.  It  was  pointed  out  by  writers  on  both 
sides  of  the  water  that  so  large  and  complex  an  or- 
ganization of  states  ought  to  exist  under  a  plan  of  or- 
ganization carefully  formulated  and  written  down  in  one 
document,  so  as  exactly  to  express  the  limitations  of  the 
various  agencies  composing  the  government.  The  first 
act  of  the  Continental  Congress  after  deciding  upon  a 
declaration  of  independence,  was  to  set  about  making  a 
written  constitution  for  the  union  of  the  colonies  as 
states  and  corporations.  All  the  colonies  except  Con- 
necticut and  Rhode  Island,  in  accordance  with  the 
suggestion  of  the  Continental  Congress,  adopted  new 
written  constitutions.  Connecticut  and  Rhode  Island, 
having  power  under  their  colonial  charters  to  elect 
all  their  own  officers,  adopted  their  colonial  charters  as 
their  state  constitutions,  and  lived  under  them  for 
many  years  after  they  became  states. 

The  fifth  proposition  on  which  the  American  system 
is  based  is,  as  it  would  seem,  that  in  order  to  keep  the 
various  agencies  in  a  corporation  working  within  their 
proper  spheres  and  in  harmony  with  each  other,  there 
must  be  somewhere  in  the  organization  a  superintending 
agency  with  power  to  nullify  the  action  of  all  other 
agencies  which  is  in  excess  of  the  powers  which  these 
agents  ought  properly  to  exercise.  Where  a  corpora- 
tion is  composed  of  corporations  and  the  constituent 
corporations  are  thus  at  the  same  time  agencies  of 
government  and  members  of  the  larger  corporation, 
the  necessity  of  having  some  superintending  and  nulli- 
fying power  to  secure  the  proper  working  of  the  com- 
plicated mechanism  becomes  still  more  evident. 

In  the  prevailing  thought  of  the  Americans,  the  king 
in  council  was  the  agency  in  the  British  Empire  in 
which  this  superintending  and  nullifying  power  was 
lodged.    The  majority  of  the  Americans  regarded  the 


Position  of  the  Judiciary  189 

Lords  and  Commons  of  Great  Britain  as  the  local  legis- 
lature of  Great  Britain,  and  insisted  that  it  was  the 
duty  of  the  king  advised  by  his  privy  council,  as  an 
arbitral  and  judicial  tribunal,  to  use  his  veto  power  as 
a  nullifying  power  for  the  purpose  of  nullifying  even 
acts  of  parliament  which  this  tribunal  should  find  to 
be  in  excess  of  the  powers  which  Great  Britain  ought 
properly  to  have  exercised  as  a  constituent  state  and  a 
governmental  agent  of  the  British  Empire.  It  was  be- 
cause they  considered  that  George  III  had  failed  and 
refused  to  exercise  this  superintending  and  nullifying 
power,  as  the  superintending  and  nullifying  agency  of 
the  whole  empire,  and  had  united  with  his  ministers 
and  the  lords  and  commons  in  attempting  to  assume 
patriarchal  or  imperial  power  in  the  federal  state  called 
"the  British  Empire,"  that  he  was  held  responsible  in 
the  Declaration  of  Independence  for  the  disintegration 
of  this  federal  state. 

The  sixth  proposition  on  which,  as  it  would  appear, 
the  American  system  is  based,  is,  that  the  superintend- 
ing and  nullifying  power  is  an  agency  of  a  judicial, 
and  not  of  a  legislative  or  executive  nature;  and  that 
therefore,  although  it  is  an  extraordinary  kind  of  judic- 
ial power,  it  may  more  safely  be  committed  to  the 
judiciary  than  to  the  executive  or  the  legislative  or  to 
an  extraordinary  agency  outside  of  the  legislative,  the 
executive  and  the  judiciary.  Such  an  extraordinary 
agency  might  easily  pervert  a  superintending  and  nulli- 
fying agency  so  that  it  would  become  in  fact  a  patri- 
archal or  imperial  power. 

In  the  first  written  federal  constitutions  adopted  by 
the  American  Union,  it  was  sought  to  avoid  the  neces- 
sity of  a  superintending  and  nullifying  tribunal  by 
establishing  between  the  colonies  merely  a  permanent 
alliance  or  confederation  advised  by  a  Congress  of 


190  The  American  Philosophy  of  Government 

ambassadors.  The  Declaration  of  Independence  was 
itself  in  part  a  written  constitution  of  union  of  the 
American  states,  for  in  it  they  described  themselves  as 
"The  United  States  of  America";  but  as  it  contained 
no  specification  of  the  powers  which  the  union,  as  dis- 
tinct from  the  states,  should  exercise,  it  created  only  a 
permanent  alliance  or  confederation.  The  articles  of 
confederation  specified  the  powers  of  the  union;  the 
powers  granted  to  congress  being  those  which  before 
the  Revolution  the  king  in  council  had  exercised  over 
the  colonies  as  the  federal  head  of  "the  British  Empire" 
with  their  consent.  These  articles  made  no  provision 
for  any  superintending  and  nullifying  agency.  They, 
however,  denied  to  the  union  any  power  to  lay  or  collect 
taxes,  or  to  regulate  interstate  or  foreign  commerce, 
or  to  acquire  or  govern  colonies.  As  these  were  the 
powers  respecting  the  exercise  of  which  in  the  empire 
Great  Britain  had  made  excessive  claims  of  power,  and 
out  of  which  the  dispute  between  Great  Britain  and 
the  colonies  had  arisen,  it  seems  to  have  been  hoped 
that,  by  withdrawing  these  powers  altogether  from 
congress,  disputes  regarding  the  limits  of  powers  would 
be  avoided,  and  thus  no  superintendence  or  nullification 
would  be  required. 

The  Constitution  of  the  United  States,  adopted  in 
1787,  conferred  these  three  disputed  powers  on  the 
union  and  provided  a  method  for  nullifying  acts  done 
in  excess  of  power  by  the  union  or  by  the  states.  This 
nullifying  power  as  respects  the  limitations  placed  upon 
governments  and  states  by  that  constitution,  was  vested 
in  the  Supreme  Court  of  the  United  States  in  the  last 
instance,  though  permitted  to  be  exercised  by  all  the 
courts  subject  to  the  final  decision  of  the  supreme  court. 
It  was  thus  recognized  as  a  judicial  power,  though  of  an 
extraordinary  kind.    This  was  logical ;  for  the  question 


Position  of  the  Judiciary  191 

whether  an  agent,  a  governmental  officer,  a  corporation 
or  a  state  has  exceeded  his  or  its  powers,  can  best  be 
decided  by  the  hearing  and  examination  of  evidence 
and  the  appHcation  of  legal  principles. 

The  seventh  proposition  on  which  the  American  sys- 
tem, as  it  would  seem,  is  based,  is  that  in  order  to 
enable  the  judiciary  to  exercise  its  superintending  and 
nullifying  agency  to  prevent  excess  of  powers  of  the 
other  agencies  of  government,  it  is  necessary  that  the 
constitution  of  the  federal  state  should  be  made  the 
supreme  law  of  the  federal  state,  and  that  the  constitu- 
tion of  each  state  should,  subject  to  this  supreme  law, 
be  the  supreme  law  of  the  state.  By  such  an  arrange- 
ment, this  extraordinary  power  of  the  courts  is  exercised 
as  a  part  of  their  ordinary  judicial  functions  in  hearing 
and  adjudicating  cases  between  ordinary  parties  liti- 
gant, and  there  is  little  possibility  that  power  exercised 
in  this  non-spectacular  manner  will  ever  be  given  any 
spectacular  setting  so  as  to  lead  to  the  popular  belief 
that  the  depositaries  of  this  power  are  really  exercising 
a  patriarchal  or  an  imperial  power.  The  citizen,  ob- 
serving the  courts  laboriously  investigating  facts  and 
basing  their  decisions  upon  subtle  distinctions  of  law 
drawn  from  experience  and  reason,  is  not  likely  to 
regard  the  courts  as  patriarchs  or  emperors.  The  safety 
and  permanence  of  the  whole  agency  system  of  govern- 
ment in  states  may,  indeed,  be  said  to  depend  upon  the 
acceptance  by  the  people  of  the  proposition  that  the 
limitations  of  the  powers  of  their  governmental  agencies 
are  under  a  supreme  law  established  by  the  people 
and  interpreted  Hke  other  law  by  the  courts.  Only 
through  the  prevalence  and  acceptance  of  this  idea  can 
there  be  assurance  at  all  times  against  the  recrudescence 
of  patriarchal  or  imperial  power. 

The  courts  in  the  United  States  were,  by  the  consti- 


192   The  American  Philosophy  of  Government 

tution  of  1787,  given  jurisdiction  to  superintend  and 
nullify  all  action  of  any  of  the  governments  limited  by 
the  Constitution  of  the  United  States  by  means  of  a 
provision  which  made  the  constitution,  and  the  acts  of 
congress  in  conformity  with  the  constitution,  "the  su- 
preme law  of  the  land."  Under  this  provision  the  con- 
stitution is  applied  by  the  courts,  with  final  appeal  to 
the  supreme  court,  in  the  same  manner  as  other  law, 
except  that  it  is  treated  as  supreme  so  that  any  govern- 
mental action  inconsistent  with  its  provisions  is  void. 
In  the  same  manner,  the  constitution  of  each  state  is 
its  supreme  law,  subject  to  the  Constitution  of  the 
United  States  which  as  to  the  limitations  upon  govern- 
mental power  contained  in  it  is  supreme  over  all  law 
throughout  the  United  States. 

Enough  has  been  said,  it  is  hoped,  to  have  satisfied 
the  reader  that  our  form  of  government  is  based  on  the 
propositions  that  governments  are  the  agents  of  the 
governed;  that  states  are  corporations;  that  federal 
states  are  corporations  composed  of  corporations;  that 
in  all  corporations  written  constitutions  are  necessary 
to  determine  the  limitations  of  the  powers  of  the  officers 
of  the  corporation  and  of  the  corporation  itself;  that 
in  the  case  of  corporations  composed  of  corporations, 
written  constitutions  are  still  more  necessary  to  fix  the 
limits  of  the  complex  agencies;  that  within  every  cor- 
poration, and  especially  within  every  corporation  com- 
posed of  corporations,  there  must  somewhere  be  vested 
a  superintending  and  nullifying  power  and  agency, 
which  can  promptly  and  effectively  nullify  all  action 
done  in  excess  of  power,  so  as  to  keep  the  whole  mech- 
anism and  the  whole  artificial  personality  working  to 
its  full  capacity  and  effectiveness;  that  it  is  safer,  as 
preventing  the  possibility  of  the  recrudescence  of  patri- 
archal or  imperial  power,  to  vest  this  superintending 


Position  of  the  Judiciary  193 

and  nullifying  power  in  the  judiciary  rather  than  in  the 
legislative  or  the  executive,  or  in  any  extraordinary 
governmental  agency  outside  of  and  distinct  from  the 
legislative,  the  executive  and  the  judiciary;  and  also 
more  logical,  since  the  superintending  and  nullifying 
power  is  judicial  in  its  nature;  and  that  it  is  necessary, 
in  order  that  the  judiciary  should  exercise  this  great 
power,  that  our  written  federal  constitution  should  be 
the  supreme  law  for  federal  purposes  and  our  state 
constitutions  supreme  law  for  state  purposes. 

Our  system  is  therefore  just,  scientific  and  practical. 
It  is  more  just,  more  scientific  and  more  practical  than 
any  other  system;  for  none  would  now  assert  that  the 
patriarchal  or  the  imperial  theory  of  government  is 
more  just,  more  scientific  and  more  practical  than  the 
agency  theory,  and  all  other  systems  are  based  on 
compromises  between  the  agency  theory  and  the  patri- 
archal or  imperial  theory. 

It  therefore  remains  to  attempt  to  discover  in  what 
respect  our  system  is  at  the  present  time  operating 
badly,  and  to  attempt  to  suggest  a  remedy;  and  par- 
ticularly to  inquire  whether  the  remedy  can  be  had 
by  the  use  of  the  initiative,  the  referendum  or  the 
recall. 

A  constitution  of  a  corporation  or  of  a  state  must 
evidently  deal  with  four  different  subjects: 

First.  The  organic  structure  of  the  corporation  or 
state — that  is,  the  relations  which  the  parts  of  the 
mechanism  bear  to  each  other. 

Second.  The  relations  between  the  governing  board 
of  the  corporation  or  the  government  of  the  state,  and 
the  individuals  composing  the  corporation  or  state  as 
members  of  the  corporation  or  citizens. 

Third.  The  relations  between  the  corporation  or 
state  and  its  members  or  citizens,  and  those  corpora- 

X3 


194   The  American  Philosophy  of  Government 

tions  or  states  with  which  it  is  federally  or  permanently 
connected  or  united,  and  their  members  or  citizens. 

Fourth.  The  relations  between  the  corporation  or 
state  and  its  members  or  citizens,  and  those  corpora- 
tions or  states  with  which  it  is  not  federally  or  per- 
manently connected  or  imited,  and  which  are  ''foreign" 
to  it,  and  their  members  or  citizens. 

The  present  defects  in  the  working  of  our  system  are 
not  with  respect  to  the  relations  described  in  the  first, 
third  or  fourth  specification.  There  is  no  complaint 
of  the  rulings  of  our  courts  in  constitutional  cases  in- 
volving the  relations  between  the  different  parts  of  our 
state  and  federal  governments  or  between  the  Union 
and  the  states  as  parts  of  the  mechanism  of  the  Union, 
or  involving  our  relations  with  our  protectorates  or 
dependencies,  or  with  foreign  nations,  or  with  the  citi- 
zens of  any  of  these  cotmtries,  or  between  our  citizens 
and  any  of  these  countries  or  their  citizens.  The 
present  complaint  arises  exclusively  under  the  second 
specification.  It  is  charged  that  our  courts  have  ruled 
erroneously  in  constitutional  cases  involving  the  rela- 
tions between  the  state  and  its  citizens  and  inhabitants. 
In  nearly  all  the  cases  where  the  courts  are  alleged  to 
have  made  these  erroneous  constitutional  decisions, 
their  decisions  have  been  made  under  constitutional 
provisions  which  declare  that  "no  person  shall  be  de- 
prived of  his  life,  liberty  or  property  without  due 
process  of  law." 

On  examining  the  decisions,  it  will  be  found  that  this 
constitutional  provision  has  been  gradually  growing  in 
importance  in  the  estimation  of  the  courts,  until  now  it 
is  regarded  as  furnishing  a  general  test  of  the  constitu- 
tionality of  governmental  action.  In  so  interpreting 
this  provision,  it  seems  that  the  courts  have  erred. 

By  referring  to  the  Petition  of  Right  of  1627,  pre- 


Position  of  the  Judiciary  195 

sented  by  the  lords  and  commons  of  England  to  Charles 
I,  where  the  expression  "due  process  of  law"  first  occurs 
in  a  constitutional  document,  we  shall  find  that  these 
words  are  there  used  exclusively  as  applied  to  cases 
where  a  man's  life,  liberty  or  property  is  taken  away  on 
account  of  his  alleged  wrong-doing.  The  expression 
occurs  in  that  petition  only  in  the  following  statement : 

''That  no  man,  of  what  estate  or  condition  that  he  be, 
should  be  put  out  of  his  lands  or  tenements,  nor  taken 
nor  imprisoned  nor  put  to  death,  without  having  been 
brought  to  answer  by  due  process  of  law." 

As  respects  the  receipt  by  the  government  of  the 
property  of  good  citizens  as  taxes  to  be  used  for  the 
public  benefit,  the  Petition  of  Right  does  not  use 
the  expression  "due  process  of  law,"  but  the  word 
"consent."    That  provision  reads: 

"That  [the  people  of  England]  should  have  this 
freedom,  that  they  should  not  be  compelled  to  contrib- 
ute to  any  tax,  tallage,  aid  or  other  like  charge  not  set 
by  common  consent  in  parliament." 

Lord  Coke,  who  is  often  wrongly  quoted  as  authority 
for  using  the  "due  process  of  law"  provision  as  a  test 
of  the  validity  of  all  forms  of  governmental  action,  held 
that  quite  a  different  test  ought  to  be  applied.  In 
Bonham's  Case  (8  Coke,  Ii5-ii8a),  decided  in  the 
court  of  common  pleas  in  161 1,  while  Coke  was  chief 
justice,  he  said,  delivering  the  opinion  of  the  court: 

"When  an  act  of  parliament  is  against  common  right 
and  reason,  or  repugnant,  or  impossible  to  be  performed, 
the  common  law  will  control  it  and  adjudge  such  act 
to  be  void." 

His  successor  in  the  chief  justiceship,  Hobart,  in  the 
case  of  Day  v.  Savadge  (Hobart,  87),  decided  about 
1620,  said,  in  delivering  the  opinion  of  the  court: 

"An  act  of  parliament,  made  against  nattiral  equity, 


196  The  American  Philosophy  of  Government 

as  to  make  a  man  judge  in  his  own  case,  is  void  in  itself; 
for  jura  naturae  sunt  immutabilia,  and  they  are  leges 
legum  (for  the  laws  of  nature  are  immutable,  and  they 
are  the  laws  of  laws.) " 

As  late  as  1701,  Holt,  Chief  Justice  of  the  Court  of 
King's  Bench,  in  the  case  of  City  of  London  v.  Wood 
(12  Modern,  669),  approved  Lord  Coke's  statement  in 
Bonham's  case. 

The  American  lawyers  from  the  period  of  the  Stamp 
act  onward,  led  by  James  Otis,  adopted  the  view  of 
Coke. 

John  Adams,  in  his  autobiography,  gives  an  account 
of  the  drafting  of  the  first  resolutions  of  the  Continental 
Congress  by  the  committee  of  which  he  was  a  member. 
One  question,  he  tells  us,  was  whether  the  resolutions 
should  declare  the  powers  of  Great  Britain  over  the 
colonies  to  be  limited  by  "the  British  constitution  and 
our  American  charters,"  or  whether  they  should  ''recur 
to  the  law  of  nature"  as  the  basis  of  their  claim  to  have 
rights  as  the  governed,  against  Great  Britain  as  their 
supreme,  but  legally  limited,  government.  He  says  that 
he  was  'Very  strenuous  for  retaining  and  insisting  on" 
the  law  of  nature.  The  resolutions  as  adopted  declared 
that  the  limitations  of  the  governmental  power  of  Great 
Britain  as  respects  the  colonies  and  their  inhabitants 
existed  "by  the  immutable  laws  of  nature,  the  principles 
of  the  English  constitution,  and  the  several  charters  or 
contracts."  It  was  natural,  therefore,  that  in  the  Dec- 
laration of  Independence  our  ancestors  should  have 
based  their  claim  to  be  absolved  from  their  former 
political  connection  with  Great  Britain,  and  to  be  inde- 
pendent states,  on  "the  laws  of  nature  and  of  nature's 
God";  and  that  they  should  have  asserted  that  govern- 
ments, however  instituted,  can  only  exercise  such 
powers  as  are  just,  as  agents  of  the  governed.    Not  to 


Position  of  the  Judiciary  197 

have  inserted  this  Hmitation  that  the  powers  exercised 
by  government  must  be  "just"  would  have  been  to 
have  rendered  the  Declaration  inconsistent  with  their 
previous  contention,  and  would  have  made  the  framers 
justly  chargeable  with  bad  faith.  Having  insisted  in 
the  controversy  with  Great  Britain  upon  the  universal 
principle  that  the  powers  of  all  governments  are  limited 
to  those  which  are  expressly  delegated  and  which  are 
just,  it  was  logically  obligatory  upon  them  to  adhere 
to  this  general  principle  in  the  Declaration  of  Inde- 
pendence and  to  make  this  principle  applicable  to  every 
government  and  state  which  should  ever  be  formed  by 
the  American  people.  That  they  intended  to  do  so,  and 
that  they  used  apt  words  to  do  so,  there  can  be  no  doubt. 

The  true  limitations  upon  the  powers  of  government 
in  its  relations  with  the  governed,  when  its  action  is 
directed  to  the  general  welfare  as  a  trustee  for  all,  and 
not  to  the  punishment  or  correction  of  an  individual  or 
a  class  of  individuals  as  a  guardian  for  the  weak  and 
deficient,  are,  it  would  seem,  to  be  found  in  the  preamble 
of  the  Declaration  of  Independence  and  in  the  preamble 
of  the  constitution.  The  Declaration  is  a  federal  con- 
stitution, since  by  it  was  formed  the  first  union  of  the 
states.  It  is  at  the  present  time,  in  so  far  as  it  states 
general  principles,  our  fundamental  federal  constitution. 
It  has  never  been  rescinded,  nor  in  any  way  amended. 
It  is  not  inconsistent  with  the  constitution  of  1 787.  The 
constitution  of  1787  recognizes  the  permanence  of  the 
principles  set  forth  in  the  Declaration  of  Independence, 
and  of  those  set  forth  in  the  Articles  of  Confederation 
except  so  far  as  they  are  inconsistent  with  the  constitu- 
tion, by  declaring  that  its  purpose  is  "to  form  a  more 
perfect  union." 

In  the  early  constitutions  of  the  states  and  in  the 
fifth  amendment  of  the  Constitution  of  the  United 


198    The  American  Philosophy  of  Government 

States,  the  expression  "without  due  process  of  law" 
was  used  in  the  same  connection  as  in  the  Petition  of 
Right — that  is,  as  limiting  the  power  of  the  government 
to  take  away  the  life,  liberty  or  property  of  the  indi- 
vidual only  when  the  governmental  action  is  directed 
against  an  individual  for  alleged  wrong-doing.    In  this 
connection  the  words  meant  that  a  person  charged  in 
court  by  another  person  with  wrong-doing,  or  threat- 
ened by  governmental  action  with  loss  of  life  or  liberty 
or  confiscation  of  property  for  alleged  wrong  committed 
against  the  state,  could  not  be  held  by  the  government 
to  be  civilly  liable  and  could  not  be  penalized  criminally 
except  according  to  a  proper  procedure  established  in 
advance  by  law  and  according  to  principles  of  law  duly 
formulated.     In  the  fourteenth  amendment,  however, 
which  was  adopted  after  the  Civil  War,  for  the  purpose 
of  giving  the  federal  government  power  to  prevent  the 
southern  states  from  reinstituting  slavery  by  indirect 
means,  the  provision  that  no  state  shall  ''deprive  any 
person  of  life,  liberty  or  property  without  due  process 
of  law"  was  inserted  in  a  connection  where  it  might 
equally  well  be  understood  as  covering  cases  where  the 
state  receives  the  property  of  honest  citizens  by  way  of 
taxation,  or  makes  general  regulations  for  the  public 
good,  and  where  it  is  seeking  to  take  away  life,  liberty 
or  property  from  persons  who  are  charged  with  wrong- 
doing.   The  courts,  under  the  leadership  of  the  Supreme 
Court  of  the  United  States,  have  construed  this  pro- 
vision as  applying  to  all  kinds  of  governmental  action. 
In  so  holding  it  seems  that  the  courts  have  clearly  erred ; 
since  the  expression  ''without  due  process  of  law,"  as 
applied  to  all  kinds  of  governmental  action  other  than 
that  whereby  the  government  seeks  to  take  away  the 
life,  liberty  or  property  of  the  individual  on  the  ground 
that  he  is  a  wrong-doer,  is  clearly  meaningless. 


Position  of  the  Judiciary  199 

As  the  natural  result  of  the  attempt  by  the  courts  to 
use  the  words  * 'without  due  process  of  law"  as  the  gen- 
eral test  of  the  validity  of  all  governmental  action  when 
these  words  have  no  meaning  except  as  applied  to  one 
kind  of  governmental  action,  our  decisions  in  constitu- 
tional cases  involving  the  relations  between  the  govern- 
ment and  the  individual  have  become  illogical  and 
confused.  The  attempt  to  draw  a  meaning  out  of  an  ex- 
pression which  is  meaningless  because  used  in  a  wrong 
connection  must  necessarily  lead  to  confusion.  As  the 
courts  have  applied  an  obscure  and  unreasonable  test 
in  the  greater  part  of  the  cases  involving  the  relations 
between  the  government  and  the  governed,  they  have 
naturally  fallen  into  the  way  of  deciding  these  cases 
according  to  the  personal  or  partisan  notions  of  the 
judges. 

The  true  test,  when  laws  passed  in  the  exercise  of  the 
taxing  power  or  the  police  power  are  claimed  to  be 
unconstitutional  on  general  grounds,  is,  it  would  seem, 
not  whether  they  comply  or  not  with  the  ''due  process 
of  law"  provision,  but  whether  or  not  they  are  "just." 
In  applying  this  test,  the  courts  will  of  course  not  hold 
an  act  of  the  legislature  not  to  be  "just,"  unless  it  is 
so  clearly  "against  common  right  or  reason,  or  repug- 
nant, or  impossible  to  be  performed,"  or  "against  natu- 
ral equity"  that  for  the  court  to  uphold  it  would  be  to 
make  the  court  an  instrument  of  injustice  instead  of  a 
court  of  justice.  Thus  in  cases  of  policy,  where  no 
moral  right  or  wrong  was  involved,  the  legislature  would 
finally  determine  the  rate  of  social  and  economic 
progress;  the  courts  following  the  legislature. 

In  the  present  situation,  therefore,  when  our  judiciary 
is  under  criticism,  it  seems  that  if  the  fourteenth 
amendment  is  agreed  to  be  so  worded  that  it  requires 
the  courts,  in  all  cases  involving  the  relations  between 


200    The  American  Philosophy  of  Government 

the  government  and  the  governed,  to  decide  by  the 
test  that  the  state  shall  not  deprive  the  individual  of 
his  life,  liberty  or  property  without  due  process  of  law, 
that  amendment  ought  to  be  amended.     It  would  be 
sufficient  if  the  words  ''for  alleged  wrong-doing"  were 
inserted  before  the  words  ''of  life,"  so  that  the  phrase 
would  read  "nor  shall  any  state  deprive  any  person,  on 
account  of  alleged  wrong-doing,  of  life,  liberty  or  prop- 
erty, without  due  process  of  law."    In  case  of  govern- 
mental action  aimed  at  individuals  or  corporations  on 
account  of  alleged  wrong-doing,  it  would  then  be  the 
duty  of  the  courts  to  see  that  the  alleged  wrong-doer 
had  a  fair  hearing  and  trial  under  an  appropriate  process 
established  by  law,  and  according  to  principles  of  law 
duly  established. 

But  perhaps  no  such  amendment  is  necessary.  It 
may  be  considered  that  the  fourteenth  amendment  was 
not  intended  to  have  the  broad  signification  which  the 
courts  have  attached  to  it,  and  that  the  natural  mean- 
ing to  be  given  to  the  words  above  quoted — especially 
as  the  words  "deprived  of  his  life,  liberty  or  property" 
are  used,  which  almost  necessarily  mean  a  taking  away 
on  account  of  wrong-doing — is  the  restricted  one  ac- 
cording to  which  the  provision  in  which  these  words 
occur  is  confined  to  governmental  action  directed 
against  alleged  wrong-doers.  If  so,  the  words  are 
ambiguous,  and  the  courts  can  by  their  own  construc- 
tion give  the  amendment  its  proper  meaning. 

The  provision  denying  to  governments  the  power  to 
deprive  individuals  of  their  life,  liberty  or  property 
without  due  process  of  law  is  one  which  occurs  in  most 
of  the  state  constitutions,  and  the  state  courts  have 
followed  the  United  States  Supreme  Court  in  construing 
it  as  applying  to  all  forms  of  governmental  action  by 
state  governments.    If  by  constitutional  amendment  or 


Position  of  the  Judiciary  201 

by  construction  of  the  United  States  Supreme  Court 
the  restricted  meaning  above  mentioned  is  given  to  this 
provision,  the  effect  would  be  to  induce  the  state  su- 
preme courts  to  restrict  the  meaning  of  these  words  in 
the  state  constitutions,  and  the  confusion  which  has 
been  caused  by  attaching  too  wide  and  general  a  mean- 
ing to  this  constitutional  provision  should,  it  would 
seem,  tend  to  cease. 

If  the  courts  should  thus  by  a  proper  construction  of 
the  words  "due  process  of  law"  be  put  in  the  position 
where  they  would  have  to  apply  specific  and  easily 
understood  limitations  of  governmental  powers  as  tests 
in  exercising  their  superintending  and  nullifying  power, 
with  the  addition  that  they  were  obliged  to  nullify  any 
governmental  action  that  was  clearly  not  "just,"  it  is 
probable  that  there  would  not  be  much  dissatisfaction 
with  their  constitutional  decisions.  If  the  issue  was  as 
to  the  application  of  a  specific  and  plainly  worded  con- 
stitutional limitation,  there  would  not  be  room  for  much 
personal  or  partisan  reasoning  by  the  judges.  If  the 
issue  were  as  to  whether  a  particular  governmental 
action  was  "just,"  the  court  would  hold  such  action 
unconstitutional  only  in  case  it  was  clearly  absurd  or 
impossible,  as  being  opposed  to  the  natural  laws  of  the 
material  universe,  or  in  case  it  was  clearly  wrongful  as 
being  opposed  to  the  fundamental  principles  of  social 
justice  formulated  in  the  Ten  Commandments  of  the 
Old  Testament  and  in  the  Two  Commandments  of 
the  New  Testament.  The  natural  laws  of  the  material 
universe  are  necessarily  fundamental  law ;  and  it  is  not 
too  much  to  say  that  the  Great  Commandments  are 
now  accepted,  in  theory  at  least,  throughout  the  society 
of  nations,  as  fundamental  law.  Courts  in  determining 
whether  governmental  action  was  or  was  not  just 
would  in  fact  be  sitting  not  as  state  or  national  courts, 


202    The  American  Philosophy  of  Government 

but  as  courts  of  the  society  of  nations;  for  the  same 
principles  which  would  determine  whether  a  certain 
governmental  action  was  unjust  in  one  nation,  would 
equally  control  in  a  similar  case  in  every  other  nation, 
and  any  court  in  deciding  such  a  case  would  in  a  very 
true  sense  be  applying  the  constitutional  law  of  the 
society  of  nations  as  the  supreme  law. 

In  passing  it  may  be  said  that  this  conception  of  our 
national  courts  sitting  as  courts  of  the  society  of  nations 
is  not  a  fanciful  suggestion,  but  is  a  practical  political 
fact.  More  and  more  statesmen  and  publicists  every- 
where are  realizing  and  accepting  as  a  fact  of  practical 
politics  that  there  is  a  society  of  the  peoples,  states  and 
nations  of  the  world,  which  for  want  of  a  better  name 
we  call  "the  society  of  nations";  that  this  society  is  a 
corporation  composed  of  corporations  and  a  federal 
state,  having  a  federal  government  which  is  the  agent 
for  the  common  purposes  of  the  peoples,  states  and 
nations  governed;  that  this  federal  government  does 
not  consist  of  a  body  of  definite  persons,  collected  to- 
gether in  one  place  as  the  capital,  and  is  not  elected  on 
the  representative  basis,  but  is  made  up  of  nations, 
states,  governmental  officers  of  nations  and  states,  and 
publicists,  scattered  over  the  face  of  the  earth,  and  is 
carefully  arranged  so  as  to  protect  the  rights  of  the 
weaker  states  and  nations  and  of  all  minorities;  that 
this  inclusive  society  and  federal  state  has  by  various 
legislative  methods  formulated  and  is  still  formulating 
its  own  federal  constitutional,  statutory  and  customary 
law,  commonly  known  as  "international  law";  and  that 
it  is  daily  enforcing  its  federal  law  by  various  executive 
methods  and  particularly  through  the  nations  and 
states  as  its  executive  organs;  and  that  therefore  na- 
tional courts,  in  determining  what  is  "just,"  are  not  at 
liberty  to  consider  alone  what  is  regarded  as  just  by 


Position  of  the  Judiciary  203 

the  "common  juridical  conscience"  of  their  own  nation, 
but  must  also  consider  what  is  regarded  as  just,  and 
treated  as  fundamental  law,  by  the  "common  juridical 
conscience"  of  the  society  of  nations. 

We  may,  therefore,  it  would  seem,  reasonably  hope 
that  by  making  all  our  special  constitutional  limitations 
clear  and  distinct  and  easily  understood, — which  we 
shall  do  by  giving  the  "due  process  of  law"  provisions 
a  restricted  meaning  so  that  they  will  apply  only  where 
governmental  action  is  directed  against  individuals  as 
alleged  wrong-doers, — and  by  making  the  only  general 
test  of  constitutionality  the  test  of  "justice," — regard- 
ing "justice"  as  that  which  is  considered  just  by  the 
"common  juridical  conscience"  of  the  society  of  nations, 
— the  courts  will,  as  a  general  rule,  act  in  a  manner 
satisfactory  to  the  enlightened  intellect  and  conscience 
of  the  people.  But  when  all  precautions  are  taken  it 
may  still  happen  that  the  courts,  as  the  superintending 
and  nullifying  agencies  of  our  states  as  corporations, 
will  occasionally  err  and  will  themselves  exceed  their 
powers  and  act  unconstitutionally.  The  question  arises, 
what  shall  be  the  remedy  in  such  a  case. 

One  remedy  which  has  already  been  frequently  ap- 
plied, is  to  amend  our  constitutions  so  as  to  recall  the 
erroneous  decisions  and  validate  future  governmental 
action  of  the  kind  which  the  courts  have  wrongly 
nullified.  But  such  a  process  of  amending  our  con- 
stitutions is  dangerous  to  our  system.  Our  written 
constitutions  by  such  amendments  are  ceasing  to  be 
statements  of  fundamental  principles  and  are  becom- 
ing confused  legislative  codes.  Thus  by  this  method  of 
attempting  to  remedy  the  difficulty  our  written  con- 
stitutions are  being  indirectly  destroyed.  It  is  neces- 
sary, therefore,  to  consider  other  possible  remedies. 

If  we  agree  that  states  are  corporations,  the  remedy 


204   The  American  Philosophy  of  Government 

to  be  applied  where  the  courts  of  a  state  exceed  their 
powers  to  superintend  and  nullify  other  agencies  and 
nullify  wrongly,  is  the  same  as  would  be  applied  in  a 
corporation  if  a  superintending  and  nullifying  official 
in  a  corporation  should  wrongly  exercise  his  powers  of 
superintendence  and  should  nullify  action  which  he 
ought  to  have  allowed  to  stand  as  valid.  The  members 
of  the  corporation,  while  indulging  in  every  presump- 
tion in  favor  of  the  superintending  and  nullifying  offi- 
cial, and  relying,  as  reasonable  men  ought  to  do,  upon 
his  expert  judgment  to  the  fullest  extent  possible, 
would,  if  they  were  satisfied  beyond  a  reasonable  doubt 
that  he  had  nullified  action  of  an  agent  which  he  ought 
not  to  have  nullified,  either  remove  him  by  vote  of  the 
majority  of  the  members  or  validate  by  similar  vote 
the  action  which  he  purported  to  nullify. 

This  seems  to  be  what  is  meant  by  ''the  recall  of 
judges"  and  "the  recall  of  decisions,"  as  these  expres- 
sions are  now  used  by  those  who  believe  our  courts 
have  erred.  The  recall  of  judges  is,  however,  used  in 
two  senses  which  it  is  necessary  to  distinguish  from 
each  other.  There  is  a  recall  of  judges  for  incompe- 
tence, and  a  recall  of  judges  for  having  participated  in 
constitutional  decisions  by  which  governmental  action 
has  been  wrongly  nullified.  The  recall  of  judges  for 
incompetence,  and  the  recall  of  judges  for  participation 
in  constitutional  decisions  which  are  erroneous,  stand 
on  entirely  different  grounds.  Every  state  or  nation 
ought  to  have  some  orderly  method  of  removing  judges 
for  incompetence.  Impeachment  does  not  meet  such  a 
case,  since  impeachment  is  permissible  only  where  moral 
turpitude  can  be  proved.  The  best  method  of  removal 
seems  to  be  by  action  of  the  legislatiu-e  addressed  to  the 
executive,  though  there  appears  to  be  no  serious  objec- 
tion to  a  referendum  for  this  purpose  if  the  people  prefer 


Position  of  the  Judiciary  205 

it,  and  it  happens  to  work  well  in  a  given  state  or  nation. 
The  recall  of  judges  for  participation  in  constitutional 
decisions  in  which  governmental  action  is  erroneously 
nullified,  or  the  recall  of  these  decisions,  must  be  by 
referendum,  if  at  all;  though  the  referendum  need 
not  actually  remove  the  judges  or  actually  reverse 
the  decision.  That  the  people  assembled  may  exercise 
this  right  without  necessarily  destroying  our  system  is 
evident.  That,  in  extreme  and  clear  cases,  they  not 
only  may  but  ought  to  exercise  in  some  manner  the 
right  to  validate  governmental  action  wrongly  nulHfied 
by  the  courts  is  also  evident.  That  this  is  a  dangerous 
power  to  be  exercised  by  popular  vote  is  also  evident, 
since  it  is  only  in  extreme  and  rare  cases  that  the 
popular  judgment  would  be  likely  to  be  more  correct 
than  the  expert  judgment  of  the  courts.  If  exercised 
frequently  and  if  exercised  wrongly,  it  would  tend  to 
unsettle  our  whole  system  and  in  the  end  would  prob- 
ably destroy  it.  But  that  a  power  is  dangerous  to 
exercise,  is  no  reason  why  it  should  never  be  exercised. 
That  it  is  dangerous  is  a  reason  for  using  caution  when 
the  power  is  exercised,  and  the  more  dangerous  it  is  the 
greater  ought  to  be  the  caution  in  exercising  it. 

The  recall  of  judges  and  the  recall  of  decisions,  when 
used  to  correct  aberrations  in  the  constitutional  action 
of  the  courts,  should  undoubtedly  be  used  rarely,  and 
only  in  extreme  cases  and  as  a  last  resort;  and  even 
then  with  caution  and  under  the  most  careful  safe- 
guards. It  should  always  be  remembered  that  the  de- 
cision of  a  court  is  final  only  in  the  case  decided,  and 
is  never  final  as  settling  legal  principles;  that  it  is 
generally  the  part  of  wisdom  to  trust  to  experts  in 
matters  which  are  complicated  and  which  can  be  fully 
mastered  only  by  experts  who  give  their  lives  to  learn- 
ing the  art;  that  the  court  as  an  institution  is  ever- 


2o6   The  American  Philosophy  of  Government 

lasting;  and  that  though  one  bench  of  judges  may  err, 
another  bench  may  correct  the  error,  so  that  the  court 
as  an  institution  is  never  likely  to  be  wrong  except 
temporarily.  Considering  the  dangers  of  the  recall  of 
judges  or  the  recall  of  decisions,  it  seems  that  it  is  on 
the  whole  safer,  in  all  but  the  most  extreme  and  rare 
cases,  to  trust  to  the  courts  correcting  their  own  errors 
by  the  pressure  of  public  opinion;  never  allowing  them 
to  forget,  however,  that  they  are  only  the  superintend- 
ing and  nullifying  agencies  of  the  state  as  a  corporation, 
and  that  the  people  of  the  state  as  members  of  the  cor- 
poration have  the  right,  which  they  can  and  will  exer- 
cise in  the  last  resort,  to  annul  unconstitutional  action 
of  the  courts  as  such  superintending  and  nullifying 
agencies  and  to  validate  the  nullifying  action,  or,  at 
their  option,  to  remove  the  judges  who  have  thus  erred. 
To  grant  that  the  courts  in  the  United  States  have 
powers  not  subject  to  control  by  the  people  in  the  last 
resort  is  to  make  the  courts  the  American  patriarchs  or 
emperors.  Like  every  other  governmental  agency,  our 
courts,  whatever  may  be  the  functions  they  exercise, 
are  the  agents  of  the  governed  and  form  a  part  of  the 
managing  boards  of  the  states  and  of  the  nation  as 
corporations.  Though  they  have  greater  functions  than 
the  courts  of  foreign  countries,  they  have  a  responsi- 
bility to  the  people  which  prevents  the  abuse  of  these 
great  functions.  There  appears  no  likelihood  that  there 
will  ever  be  such  a  use  of  the  initiative,  the  referendum 
or  the  recall  as  will  interfere  with  the  performance  by 
our  courts  of  these  functions ;  and  there  is  much  in  the 
movement  for  recall  of  judges  and  recall  of  decisions 
to  encourage  the  belief  that  sturdy  manhood  still  per- 
sists throughout  the  American  jurisdiction,  demanding 
that  governments  shall  be  and  remain  the  agents  of  the 
governed. 


INTERNATIONAL  LEGISLATION  AND 
ADMINISTRATION 


«>7 


INTERNATIONAL  LEGISLATION  AND 
ADMINISTRATION 

Address  delivered  at  the  National  Conference  on  Foreign  Relations 
of  the  United  States,  held  under  the  auspices  of  the  Academy  of  Po- 
litical Science  at  Long  Beach,  N.  Y.,  May  29,  191 7. 

Reprinted  from  Proceedings  of  the  Academy  of  Political  Science  in  the 
City  of  New  York,  July,  191 7 

A  SURVEY  of  international  politics  discloses  two 
great  facts.  The  first  is,  that  the  nations  have 
always  refused  to  consider  any  plan  for  institut- 
ing an  international  government  endowed  with  physi- 
cal force.  The  second  is,  that  the  nations,  by  the  Hague 
Convention  for  Pacific  Settlement  of  International 
Disputes,  ratified  by  practically  all  of  them,  besides 
establishing  the  judicial  part  of  an  international  organi- 
zation, legitimized  and  recommended  international  con- 
ciliation of  disputant  or  belligerent  nations  by  any 
nation  not  engaged  in  the  dispute,  through  good  offices 
and  mediation,  and  also  recommended  the  institution 
of  commissions  of  inquiry  by  disputant  nations  to  settle 
the  dispute  as  agencies  of  international  conciliation. 

This  second  fact  is  of  profound  importance;  for  the 
Convention  for  Pacific  Settlement  is,  so  far  as  it  goes, 
a  written  constitution  of  the  society  of  nations.  By  it 
the  united  nations  instituted  an  international  judicial 
organ,  the  Permanent  Court  of  Arbitration;  and  certain 
administrative  organs  ancillary  to  the  court,  the  Per- 
manent Administrative  Council  and  the  International 
Bureau.  By  it  mediating  nations,  and  commissions  of 
14  209 


2IO  The  American  Philosophy  of  Government 

inquiry  instituted  by  disputant  nations,  were  recog- 
nized as  international  conciliative  agencies  in  the  par- 
ticular case.  By  it  the  processes  of  action  of  these 
international  agencies  and  organs  were  prescribed.  By 
the  Draft  Convention  for  a  Judicial  Arbitration  Court 
— otherwise  called  the  Permanent  Court  of  Arbitral 
Justice — the  Second  Hague  Conference  instituted  an 
additional  international  organ  and  prescribed  its  pro- 
cesses ;  and  when  the  nations  agree  concerning  the  man- 
ner of  selecting  the  judges  of  this  new  international 
court  and  thus  put  the  Draft  Convention  into  effect, 
the  Draft  Convention  will  in  fact  form  an  additional 
part  of  the  Convention  for  Pacific  Settlement.  The 
Convention  for  Pacific  Settlement  is,  however,  an  in- 
complete written  constitution,  because  it  fails  to  insti- 
tute any  international  legislative  organs  or  processes 
whatever,  and  because  the  administrative  organs  insti- 
tuted by  it,  being  only  ancillary  to  the  judicial  organ, 
are  inadequate  for  general  international  administrative 
purposes.  In  spite  of  the  incompleteness  and  inade- 
quacy of  the  Convention  for  Pacific  Settlement,  how- 
ever, the  fact  that  it  exists,  as  the  substantially  unani- 
mous act  of  all  nations,  is  perhaps  the  most  momentous 
circumstance  in  human  history.  When  the  substan- 
tially unanimous  ratification  of  this  convention  was 
completed,  in  the  summer  of  1907,  the  nations  ceased 
to  be  a  mere  unorganized  community,  and  became  an 
organized  voluntary  and  co-operative  society  and  union 
for  judicial  purposes — a  verband,  as  the  German  writers 
describe  it;  or  a  consociation,  as  we  might  call  it. 
(See  *'Der  Staaten verband  der  Haager  Konferenzen," 
by  Professor  Walther  Schiicking  of  the  University  of 
Marburg,  published  in  19 12.) 

The  nations  were  not  ready,  at  the  time  of  the  Hague 
Conferences,  to  consider  the  question  of  an  improved 


International  Legislation  211 

arrangement  for  international  legislation  and  adminis- 
tration. It  was  not  even  discussed  in  1899  or  in  1907. 
The  ten  years  that  have  nearly  elapsed  since  the  Second 
Hague  Conference  have,  however,  been  years  of  won- 
derful development  and  progress.  This  universal  war 
has  clarified  many  things  that  before  were  unseen  or 
seen  only  darkly.  The  question  of  making  an  improve- 
ment in  international  legislation  and  administration  is 
now  one  of  practical  politics.  It  is  clear  that  such  an 
improvement  must  occur  through  the  amendment  and 
revision  of  the  Convention  for  Pacific  Settlement  so  as 
to  add  to  it  the  proper  institutions  for  international 
legislation  and  administration,  consistent  with  the 
existing  judicial,  administrative  and  conciliative  insti- 
tutions established  by  it  and  conforming  to  the  general 
spirit  of  the  convention  and  the  fundamental  principles 
on  which  it  is  based. 

The  first  question  is,  ought  an  international  adminis- 
trative body  to  be  itself  empowered  to  use  physical 
force  to  control  the  nations;  that  is  to  say,  ought  a 
physical-force  international  government  to  be  insti- 
tuted by  the  nations  to  govern  them  for  the  common 
purposes?  If  the  nations  delegate  to  a  physical-force 
government  the  power  to  govern  them,  they  must  also 
delegate  to  it  the  power  to  tax  for  the  common  purposes 
and  the  power  to  raise,  support,  and  wield  an  interna- 
tional army,  navy,  and  police.  The  power  to  tax,  as 
has  been  well  said,  is  the  power  to  destroy. 

The  question  whether  a  physical-force  international 
government  is  politically  practicable  as  tending  to  just 
government,  almost  answers  itself  in  the  negative;  since 
all  the  nations  have  persistently,  unanimously,  and 
recently  refused  even  to  consider  such  a  form  of  gov- 
ernment. Yet,  as  such  an  international  government  is 
advocated  by  many,  it  will  be  desirable  to  analyse  the 


212   The  American  Philosophy  of  Government 

reasons  why  it  is  impracticable,  and  to  satisfy  ourselves 
that  these  reasons  are  permanent  and  unchangeable. 

All  plans  for  such  an  international  government  fall 
into  one  of  three  classes:  They  are  plans  for  interna- 
tional government  by  one  nation;  or  by  a  league  of 
nations ;  or  by  a  body  of  men  delegated  by  the  nations, 
with  power  to  raise,  support,  and  wield  an  international 
army,  navy,  and  police.  An  international  government 
consisting  of  one  nation  would  be  necessarily  autocratic, 
since  a  nation  is  necessarily  endowed  with  physical 
force  and  cannot  be  legally  limited.  The  only  limi- 
tations upon  the  powers  of  a  nation  which  are  possible 
are  self -limitations  imposed  by  the  nation  upon  itself; 
which,  from  the  standpoint  of  political  science,  are  no 
limitations.  Moreover,  the  only  nation  which  could, 
as  a  matter  of  practical  politics,  be  the  constituted  in- 
ternational autocrat  would  be  one  which  was  already 
the  de  facto  international  autocrat  by  reason  of  its  con- 
trol of  the  seas,  the  international  trade  routes,  and  the 
regions  inhabited  by  weak  or  backward  peoples,  and 
which  was  so  favorably  located  as  to  be  able  success- 
fully to  weaken  all  its  rivals  by  playing  as  sure  winner 
in  the  diplomatic  and  military  game  of  the  balance  of 
power. 

A  league  of  nations  is,  like  a  nation,  endowed  with 
physical  force  and  is  incapable  of  constitutional  limita- 
tions ;  and  if  such  a  league  were  to  institute  itself  as  the 
international  government,  it  would  have  to  be,  already, 
collectively,  the  de  facto  international  autocrat.  There 
being  no  possibility  of  constitutional  limitation  as 
respects  either  the  internal  or  the  external  relations  of 
the  league,  it  would  necessarily  develop  an  invisible 
government  of  its  own,  which  would  be  the  autocrat  of 
the  league  and  of  the  world.  This  invisible  government 
would  necessarily  be  a  body  of  men,  or  the  one  nation 


International  Legislation  213 

which  at  the  moment  happened  to  be  the  de  facto  and 
actual  autocrat  of  the  world. 

If  the  nations,  without  disarming,  were  to  appoint  a 
body  of  persons  with  governmental  powers  for  the  com- 
mon purposes  and  endow  this  body  with  physical  force, 
the  result  would  be  to  increase  the  possibiHties  of  war 
without  establishing  an  efficient  international  govern- 
ment. If  the  nations  were  to  disarm  and  delegate 
powers  of  government  for  the  common  purposes  to  a 
body  of  persons,  at  the  same  time  endowing  this  body 
with  physical  force,  they  would  destroy  themselves  as 
nations  and  become  states  of  a  universal  federal  state. 
Such  self-abnegation  on  the  part  of  the  nations,  if  con- 
ceivable as  a  matter  of  practical  politics,  would,  how- 
ever, be  of  no  avail,  since  a  federal  state  thus  established 
would  be  found  to  be  inefficient  as  a  means  of  preserving 
international  order  and  peace. 

The  federal  state,  if  attempted  to  be  applied  where 
the  requisites  for  its  operation  do  not  exist,  establishes 
an  autocracy  of  a  majority  necessarily  ignorant  of  its 
own  needs  or  the  needs  of  the  minority,  which  is  the 
worst  and  most  hopeless  of  all  autocracies.  The  two 
requisites  for  the  successful  existence  of  a  federal  state 
have  been  proved  to  be,  first,  that  it  shall  include  a 
territory  every  part  of  which  is  contiguous  with  every 
other  part  or  is  so  situated  and  populated  that  it  may 
be  regarded  as  appurtenant  for  political  purposes; 
second,  that  it  shall  contain  a  population  which  is 
highly  civilized  and  homogeneous  and  which  is  under 
economic  pressure  to  cooperate  as  an  economic  unit. 
Where  these  two  conditions  do  not  exist,  the  federated 
states  and  peoples  are  necessarily  ignorant  of  the  local 
conditions  of  one  another  and  are  swayed  by  their 
local  interests,  so  that  the  majority  vote  of  their  rep- 
resentatives is  necessarily  determined  by  the  play  of 


214    The  American  Philosophy  of  Government 

the  local  interests  against  each  other.  Such  a  situation 
means  either  government  by  an  assembly  which  is 
autocratic  through  ignorance,  or  an  invisible  govern- 
ment which  is  autocratic  as  being  without  constitutional 
limitations.  On  account  of  the  realization  of  this  danger 
of  the  federal-state  plan  of  government,  if  extended  be- 
yond the  regions  in  which  the  necessary  conditions  exist, 
the  proposal  for  converting  the  British  Empire  into  a 
federal  state,  promoted  by  the  Imperial  Federation 
League  from  1885  to  1895,  was  rejected  by  the  people 
of  Great  Britain,  and  by  the  people  of  the  British 
dominions,  colonies,  and  dependencies.  For  the  same 
reason,  the  people  of  the  United  States  rejected  the 
proposal  to  incorporate  the  Philippines  into  an  enlarged 
American  federal  state.  Taking  the  world  together, 
with  its  diverse  nations  and  peoples,  the  conditions  for 
uniting  the  nations  and  their  peoples  into  a  federal 
state  are  lacking  not  only  at  the  present  time,  but 
undoubtedly  for  all  time  to  come. 

If,  therefore,  the  nations  were  to  attempt  to  institute 
any  kind  of  international  government  endowed  with 
physical  force,  they  would  inevitably  be  instituting  an 
international  autocracy.  It  would  be  indispensable 
that  in  any  constitution  of  the  society  of  nations,  there 
should  be  an  express  constitutional  prohibition,  deny- 
ing physical  force  to  any  part  of  the  organization — legis- 
lative, administrative,  or  judicial ;  and  also  a  prohibition 
denying  the  power  of  taxation  in  any  form  or  under  any 
guise  whatever,  since  a  body  which  can  tax  can  endow 
itself  with  physical  force. 

The  object  of  these  prohibitions  would  be,  however, 
only  to  prevent  the  international  body  delegated  by  the 
nations  from  becoming  autocratic,  and  it  would  doubt- 
less be  needful  that  the  international  body  should 
exercise  certain  international  police  powers  in  certain 


International  Legislation  215 

exceptional  cases.  Therefore  it  would  be  necessary 
to  provide,  by  way  of  exception,  that  these  prohibitions 
should  not  prevent  the  nations  from  making  grants  to  the 
international  body,  by  special  international  agreements, 
of  police  or  taxing  power,  or  both,  within  international 
areas  or  internationalized  districts  designated  by  these 
international  agreements,  where  the  local  circumstances 
were  such  that  it  would  be  certain  that  no  resistance 
would  be  made  to  the  international  police  except  by  in- 
dividuals or  by  small  unorganized  bodies  of  individuals. 

But,  though  thus  substantially  deprived  of  physical 
force,  the  international  body  which  any  constitution  of 
the  society  of  nations  must  necessarily  institute  of 
course  must  not  be  deprived  of  force,  since  all  govern- 
ment involves  the  use  of  force.  It  could  be,  and  un- 
doubtedly ought  to  be  endowed  with  persuasive  force. 
Persuasion  is  a  force  which  is  utilizable  and  every  day 
utilized,  with  increasing  effectiveness,  by  all  govern- 
ments, but  which,  like  all  forces,  has  the  possibility  of 
use  for  good  or  for  evil.  An  international  body,  dele- 
gated by  the  nations,  could  use  persuasion  to  induce 
the  nations  either  to  cooperate  in  order  and  peace,  or 
to  compete  with  one  another  in  disorder  and  war.  By 
controlling  the  physical  force  of  some  of  the  nations,  it 
could  terrorize  and  enslave  other  nations  or  produce 
interminable  war  and  anarchy.  Such  a  power  must  be 
carefully  safeguarded  by  constitutional  limitation,  so 
that  it  may  be  effective  and  yet  not  dangerous. 

The  international  body,  in  order  to  be  effective,  must 
exercise  scientifically  organized,  informed,  and  appHed 
persuasion.  This  implies  conciliation  by  expert,  in- 
formed, and  aggressive  action.  The  international  body 
must  not  sit  still  and  wait  for  the  nations  to  ask  it 
to  act.  It  must  investigate  and  inform  itself,  must 
formulate  counsel  on  the  facts  discovered  by  investiga- 


21 6  The  American  Philosophy  of  Government 

tion,  and  must  do  everything  proper  to  induce  the  na- 
tions to  accept  and  follow  its  counsel.  A  body  endowed 
with  the  power  of  conciliation  uses  real  force  and 
superior  force,  for  it  uses  psychical  force ;  and  psychical 
force,  being  the  creator,  user,  and  destroyer  of  physical 
force,  is  necessarily  superior  and  major  force. 

The  international  conciliative  body,  in  order  to  be 
effective,  must  be  pervasive.  It  must  therefore  have 
in  each  nation  a  permanent  branch  or  delegation. 
Doubtless  the  international  body  would  appoint  the 
members  of  each  national  delegation,  subject  to  confir- 
mation by  the  nation  through  its  executive  government 
or  its  legislature.  Doubtless  also  the  members  of  each 
national  delegation  would  be  removable  by  the  inter- 
national body. 

The  international  conciliative  body,  in  order  to  be 
effective,  must  be  armed  by  the  nations  with  the  weapon 
of  publicity,  so  that  it  may  create  and  wield,  or  cor- 
rect, public  sentiment  in  favor  of  its  righteous  counsel. 
The  power  to  publish  its  counsel  and  support  it  by 
statement  of  facts  and  by  argument,  might,  and  prob- 
ably would,  require  that  it  should  be  granted  a  means 
of  publication  controlled  by  itself. 

The  international  body,  in  order  not  to  be  dangerous, 
must  use  its  power  of  persuasion  exclusively  for  con- 
ciliation to  induce  cooperation.  It  must  appeal  to 
self-interest,  seen  in  the  light  of  the  interests  of  all  con- 
cerned. There  must  be  an  entire  absence  of  threats, 
secret  pressure,  or  other  form  of  terrorization.  Partisan 
politics  must  never  be  allowed  to  influence  its  personnel 
or  work,  or  that  of  its  delegation  in  any  nation.  Its 
independence  and  impartiality  must  be  absolute,  and 
should  be  jealously  prized  and  guarded  by  the  people. 

It  should  be  impossible  in  the  future  for  any  confer- 
ences to  be  held  when  secret  treaties  exist  affecting  the 


International  Legislation  217 

objects  discussed,  unknown  not  only  to  the  nationals  of 
the  countries  involved,  but  to  the  very  parliaments  them- 
selves, as  has  been  the  case  in  the  past.  The  fundamen- 
tal work  of  the  international  body  must  be,  through  its 
delegation  in  each  nation,  to  instruct  the  masses  concern- 
ing the  international  status,  the  situation  of  their  own 
nation,  the  attitude  of  their  own  national  administra- 
tion toward  international  affairs  and  the  reasons  for 
and  against  it,  as  clearly  and  definitely  as  is  compatible 
with  the  public  interest;  so  that  public  opinion,  instead 
of  being  swayed  by  ignorance,  by  prejudice  or  by  local 
self-interest,  will  be  sound  and  enlightened  and  a  source 
of  strength  in  any  crisis. 

Conciliation  necessarily  involves  the  acceptance  and 
promulgation  of  democracy,  republicanism,  and  coop- 
eration ;  that  is,  in  a  word,  the  two  great  commandments 
of  the  New  Testament.  It  implies  government  by  con- 
sent, since  conciliation  by  the  government  and  consent 
by  the  governed  are  correlative.  The  philosophy  which 
it  must  inevitably  act  upon  and  inculcate,  if  it  acts 
logically,  is  the  philosophy  of  cooperation — that  each 
man  and  each  nation  can  gain  more  by  voluntarily  co- 
operating with  all  others  in  utilizing  the  forces  of  nature 
for  human  development  and  by  participating  equitably 
in  the  common  product,  than  is  possible  by  isolated  or 
competitive  action. 

The  principle  of  conciliative  direction  of  the  inter- 
national acts  and  relations  of  nations  by  international 
agencies,  is  the  fundamental  principle  on  which  the 
Convention  for  Pacific  Settlement  is  based.  The  first 
part  of  that  convention  is  devoted  to  "good  offices  and 
mediation ; ' '  the  second  to  ' '  arbitration . "  "  Good  offices 
and  mediation"  are  merely  diplomatic  terms  to  express 
two  elements  of  the  whole  process  of  international  con- 
ciliation.    Though  the  convention,  as  has  been  said, 


2i8   The  American  Philosophy  of  Government 

creates  no  general  international  agency  of  international 
conciliation,  nevertheless  by  its  legitimation  and  ap- 
proval of  good  offices  and  mediation  by  one  nation  as 
respects  disputes  between  other  nations,  and  by  its  rec- 
ommendation to  disputant  nations  to  institute  com- 
missions of  inquiry  for  the  settlement  of  the  dispute  as 
international  cohciliative  agencies,  it  recognizes  inter- 
national conciliation  as  a  proper  and  feasible  means  of 
directing  international  action.  The  establishment  of 
means  for  international  legislation  and  administration 
by  conciliation,  therefore,  would  not  require  the  nations 
to  accept  a  new  principle.  It  would  only  be  the  carry- 
ing-out to  its  logical  conclusion  of  a  principle  which 
they  have  already  accepted.  The  problem  of  bringing 
about  efficient  international  legislation  and  adminis- 
tration is  that  of  formulating  a  scheme  of  international 
legislation  and  administration  based  on  the  accepted 
principle  of  international  conciliation,  which  shall  be  ac- 
ceptable to  the  nations  as  being  for  their  general  and 
particular  self-interest;  and  of  fitting  this  scheme  into 
the  present  scheme  of  international  adjudication  and 
national  conciliation  established  by  the  Convention  for 
Pacific  Settlement,  so  as  to  expand  that  convention 
into  a  complete  written  constitution  of  the  society  of 
nations. 

The  proper  organs  of  an  international  political  body 
for  effecting  international  legislation  and  administration 
by  conciliation  would  not,  it  seems,  be  a  legislature 
and  an  executive  exactly  in  the  sense  in  which  we  use 
these  terms,  but  would  resemble  what  in  our  large 
civic  associations  and  our  business  trusts  (and,  indeed, 
in  nearly  all  associations  of  a  purely  voluntary  and  co- 
operative character)  we  call  an  executive  committee 
and  a  general  committee.  The  body  corresponding  to 
an  executive  committee  might  be  called  the  ordinary 


International  Legislation  219 

international  directorate,  and  the  one  corresponding  to 
a  general  committee,  the  superintending  international 
directorate.  The  ordinary  directorate  would,  through 
its  members,  aided  by  such  subordinate  committees 
and  expert  assistants  as  might  be  found  necessary,  and 
by  the  local  delegations  in  each  nation,  do  the  continu- 
ous administrative  work  of  conciliation — making  inves- 
tigation of  facts,  formulating  its  counsel  on  the  facts 
as  ascertained,  and  doing  everything  proper,  short  of 
using  physical  force,  to  induce  the  adoption  of  the 
counsel  by  the  national  governments  concerned.  The 
superintending  directorate,  meeting  occasionally  or 
periodically,  would,  as  chief  administrative,  superin- 
tend the  administrative  action  of  the  ordinary  directo- 
rate by  formulating  different  counsel  in  particular  cases, 
and  would  also  act  legislatively  by  laying  down  general 
rules  applicable  to  general  classes  of  international  ac- 
tivities. These  general  rules  would  be  primarily  for  the 
guidance  of  the  ordinary  directorate  in  its  conciliative 
work.  Incidentally  they  would  be  for  the  guidance  of 
the  nations  and  their  people  in  the  classes  of  interna- 
tional activities  to  which  the  rules  would  relate. 

The  ordinary  directorate  would  doubtless  be  more 
effective  if  it  were  to  be  an  appointive  body.  The  mem- 
bers might  be  appointed  by  a  body  corresponding  to 
the  Permanent  Administrative  Council  established  by 
the  Hague  Conferences,  or  by  the  superintending  direc- 
torate. The  superintending  directorate  would  doubt- 
less be  most  efficient  if  it  were  to  be  a  representative 
body.  The  system  adopted  in  the  United  States  of 
having  a  Senate  and  a  House  of  Representatives,  the 
one  representing  the  nations  as  equals,  and  the  other 
representing  districts  of  equal  population,  would  seem 
to  be  applicable. 

The  composition  of  the  membership  of  the  directo- 


220  The  American  Philosophy  of  Government 

rates  would  be  a  matter  of  prime  importance.  There 
would  doubtless  need  to  be  stringent  rules  determining 
the  eligibility  of  persons  to  membership  in  either  direc- 
torate, particularly  in  the  ordinary  directorate.  The 
use  of  conciliation  a^  a  governing  force  so  as  efficiently 
to  direct  the  action  of  masses  of  men,  by  their  own 
consent,  into  activities  which  are  to  their  self-interest 
and  also  to  the  interest  of  all,  is  expert  work  of  the  high- 
est character.  No  one  should  be  eligible  to  such  an 
official  station  who  is  not  naturally  endowed  with  great 
intellect  and  conscientiousness,  and  who  has  not  added 
as  much  as  possible  to  his  natural  powers  by  education, 
by  study  and  research,  by  travel  enlightened  by  know- 
ledge of  languages,  and  by  actual  experience  in  govern- 
ment. 

Under  an  international  conciliative  directorate,  inter- 
national legislation  would  be  effected,  as  at  present,  by 
the  conventional  enactments  of  conferences  of  all  na- 
tions ratified  by  the  separate  nations,  or  by  the  fixation 
of  international  custom  through  coinciding  treaty  and 
diplomatic  action  of  many  nations;  but  in  addition  it 
would  be  effected  by  the  general  rules  laid  down  by 
the  superintending  directorate  for  the  guidance  of  the 
ordinary  directorate,  by  the  ordinary  directorate  in  fol- 
lowing its  own  precedents  of  counsel,  and  by  uniform 
national  legislation  and  treaty  action  respecting  inter- 
national matters,  this  uniformity  being  brought  about 
by  the  conciliative  action  of  the  international  directo- 
rate. Each  nation  would  be  regarded  as  having  not 
only  exclusive  powers  of  government  within  its  own 
borders  and  over  its  own  purely  internal  activities,  and 
over  all  its  citizens  and  corporations  as  respects  their 
international  activities,  but  also  concurrent  full  powers 
of  government  with  all  other  nations  over  the  high 
seas,   and  concurrent  limited  powers  of  government 


International  Legislation  221 

over  the  international  trade  routes,  natural  and  arti- 
ficial, and  over  all  regions  held  as  dependencies  by  any- 
one nation.  The  international  directorate  and  the  na- 
tional legislatures  and  treaty-making  organs,  acting 
uniformly  in  international  affairs,  would  all  together 
constitute  the  international  legislature.  International 
conferences  for  framing  rules  of  international  law,  sub- 
ject to  ratification  by  the  nations,  might  also  be  held, 
if  deemed  advisable. 

The  international  administration  would  be  conducted 
by  the  two  directorates  and  the  executives  of  the  differ- 
ent nations;  the  latter  enforcing,  each  upon  its  own 
nationals  and  corporations,  in  a  uniform  manner  rec- 
ommended by  the  international  directorate,  the  inter- 
national legislation  enacted  in  manner  above  described. 
The  international  administrative  would  thus  be  com- 
posed of  the  international  directorate  and  the  particular 
national  executive  engaged  in  enforcing  a  particular  act 
of  international  legislation. 

The  present  Permanent  International  Court  of  Arbi- 
tration, and  the  Permanent  Court  of  Arbitral  Justice 
already  agreed  to  in  principle  by  the  Second  Hague 
Conference,  would  remain  as  the  supreme  judicial  or- 
gans of  the  society  of  nations;  their  decisions  being 
advisory  and  being  reported  by  the  respective  courts 
to  the  ordinary  directorate  so  that  it  might  secure  their 
enforcement  through  conciliation  of  the  nations  con- 
cerned. Doubtless  in  the  long  run  international  dis- 
trict courts  would  be  established  in  correspondence  with 
the  Permanent  Court  of  Arbitral  Justice,  each  district 
comprising  one  large  nation  or  a  group  of  smaller  na- 
tions. These  district  courts  might  have  final  jurisdic- 
tion in  non- constitutional  cases  in  which  the  rights 
involved  were  really  those  of  individual  nationals  of 
different  nations,  subject  to  certiorari  from  the  Perma- 


222   The  American  Philosophy  of  Government 

nent  Court  of  Arbitral  Justice.  The  Permanent  Court 
of  Arbitral  Justice  might  have  appellate  jurisdiction 
over  the  district  courts  in  constitutional  cases  between 
individual  nationals  of  different  nations,  and  exclusive 
jurisdiction  in  suits  )3etween  nations  involving  strictly 
national  rights  as  distinct  from  the  rights  of  individual 
nationals.  The  nations  would  of  course  remain  at  lib- 
erty to  settle  their  disputes  by  arbitration  conducted 
by  arbiters  of  their  own  choice,  if  they  saw  fit. 

The  primary  power  which  would  need  to  be  delegated 
to  the  international  directorate  would  be  the  power  to 
bring  about,  through  conciliation  applied  to  national 
governments  so  as  to  induce  uniform  national  legislation 
and  treaty  action,  the  internationalization  and  freedom 
of  the  high  seas  and  of  the  international  trade  routes, 
including  international  railroads,  canals,  straits,  sounds, 
and  rivers.  This  would  involve  a  conciliative  direction 
of  international  trade,  finance,  intercourse,  and  migra- 
tion. Power  might  also  be  delegated  to  the  international 
directorate  to  bring  about,  by  the  same  conciliative 
action,  a  more  or  less  complete  internationalization  of 
backward  countries  held  as  dependencies  of  separate 
nations;  such  internationalization  to  be  effected  by 
each  nation  holding  dependencies  adopting  a  more  or 
less  open-door  policy,  determined  in  each  case  by  the 
local  circumstances  of  each  dependency,  as  respects 
concessions  for  internal  improvements  and  for  carrying 
on  manufacturing,  mining,  trade,  transportation,  and 
banking  in  these  countries;  the  ultimate  goal, being  the 
equalization  of  economic  opportunity  among  all  the 
nations. 

The  exceptional  cases  in  which  the  poHce  and  taxing 
power,  or  the  poHce  power  alone,  might  properly  be 
granted  to  the  international  directorate  would,  it  seems, 
be  of  three  kinds.    First,  if  a  district  were  provided  as 


International  Legislation  223 

the  seat  of  international  direction,  the  international 
directorate  would  necessarily  have  the  power  of  local 
police  and  local  taxation  within  the  district;  second,,  if 
the  high  seas,  as  an  international  area  by  reason  of 
being  the  common  property  of  all  nations,  were  to  be 
freed  from  national  naval  vessels  as  the  results  of  de- 
structive inventions  and  the  successful  working  of  the 
international  directorate,  the  international  directorate 
might  be  granted  authority  to  patrol  the  sea  routes  for 
police  purposes;  and,  third,  if  zones  or  districts  border- 
ing on  straits,  canals,  or  rivers  were  internationalized 
by  special  international  agreement,  the  international 
directorate  might  be  granted  authority  to  maintain  a 
police  patrol  within  the  internationalized  zone  or 
district. 

The  whole  directorate,  composed  of  the  ordinary 
directorate  and  the  superintending  directorate,  together 
with  the  international  courts — which  might  be  called 
the  general  international  directorate — would  be  finan- 
cially supported  in  the  same  manner  as  is  the  present 
international  body  located  at  The  Hague.  The  Conven- 
tion for  Pacific  Settlement  provides  that  the  expenses 
of  the  present  Hague  organization  "shall  be  borne  by 
the  signatory  powers  in  the  proportion  fixed  for  the  In- 
ternational Bureau  of  the  Universal  Postal  Union. ' '  The 
convention  establishing  the  Universal  Postal  Union  ac- 
tually fixes  the  proportions  to  be  paid.  Doubtless  no 
better  system  could  be  devised  at  the  present  time. 

The  safeguards  around  the  international  directorate 
would  be  primarily,  the  substantial  denial  of  power  to 
use  physical  force,  which  would  carry  with  it  a  denial 
of  general  taxing  power;  secondarily,  the  requirements 
that  in  its  action  it  should  deal  exclusively  with  the 
national  governments,  that  it  should  use  conciliation 
and  persuasion  exclusively ;  that  it  should  be  composed 


224  The  American  Philosophy  of  Government 

of  experts  and  superintending  experts;  that  it  should 
have  a  specific  sphere  of  powers  relating  to  the  seas  as 
the  common  property  of  all  nations,  to  the  international 
trade  routes  as  subject  to  the  common  use  of  all  nations, 
and  to  colonies  and  dependencies  as  subject  to  a  quali- 
fied common  use  by  all  nations;  and,  thirdly,  the  pro- 
vision that  it  should  never  be  reduced  to  the  necessity 
of  begging  money  from  the  nations  or  asking  protection 
from  any  nation,  but  should  be  assured,  in  advance 
and  permanently,  by  an  agreement  of  all  nations,  an 
adequate  and  dignified  support,  and  perhaps  also  an 
appropriate  seat  of  international  direction  exclusively 
governed  by  itself. 

It  is  incumbent  on  the  United  States  to  see  to  it,  so 
far  as  may  be  in  its  power,  that  no  international  di- 
rectorate is  ever  established  except  under  a  written 
constitution  delegating  carefully  limited  powers  and 
ratified  by  all,  or  at  least  two-thirds  of  the  nations ;  and 
that  the  written  constitution  shall  be  plainly  such  on 
its  face — not  merely  in  substance,  but  also  in  form. 
It  is  inctunbent  also  upon  the  United  States  to  see  to  it 
that  this  constitution  shall  contain  a  plain  and  dis- 
tinct recognition  of  the  universal  and  fundamental 
principles  which  lie  at  the  basis  of  all  orderly  and  peace- 
ful society.  The  insistence  of  Americans  on  written 
constitutions  is  not  a  mere  American  idiosyncrasy. 
Written  constitutions  are  a  vital  and  essential  part  of 
the  American  system,  regarded  as  a  universal  system. 
By  the  Declaration  of  Independence,  the  American 
people  committed  themselves  to  maintenance  of  the 
proposition,  as  a  universal  and  self-evident  truth,  that 
all  men  are  equally  the  creatures  of  a  common  Creator, 
and  that  there  are  therefore  certain  rights  of  every 
human  being,  of  which  he  cannot  by  his  own  action 
deprive  himself,  which  arise  from  the  nature  of  man  as 


International  Legislation  225 

a  spiritual  being  and  from"  the  equal  endowment  of 
each  man  by  his  Creator  with  the  attributes  of  life, 
the  will  to  Uve,  and  the  desire  for  happiness,  which 
are  common  to  all;  so  that  these  fundamental  and  uni- 
versal rights  exist  antecedent  to  and  independent  of 
every  government,  however  great  and  powerful.  This 
fundamental  and  necessary  limitation  upon  the  power 
of  all  governments  requires  recognition  by  all  govern- 
ments through  a  written  constitution ;  and  since  all  the 
subordinate  rights  of  individuals  established  by  gov- 
ernments must  be  derived  from  and  consistent  with 
these  fundamental  rights,  written  constitutions  are  also 
necessary  in  order  to  enable  the  people  governed  so  to 
frame  their  government  and  so  to  limit  and  safeguard 
it,  by  general  declarations,  by  specifications  of  powers, 
and  by  prohibitions,  that  it  will  certainly  respect  and 
secure  the  fundamental  principles  which  underlie  all 
human  society  and  the  fundamental  rights  of  individu- 
als and  nations  based  on  these  fundamental  principles. 
Therefore  it  would  be  necessary  that  the  written 
constitution  of  the  society  of  nations  establishing  the 
international  directorate  should  contain  a  declaration 
of  the  universal  and  fundamental  principles  of  all  human 
action  and  relationship  such  as  is  contained  in  the  first 
sentence  of  the  second  paragraph  of  the  preamble  of 
the  Declaration  of  Independence;  a  declaration  of  the 
fundamental  rights  and  duties  of  nations,  such  as  that 
which  has  been  adopted  by  the  American  Peace  Society 
and  the  American  Institute  of  International  Law;  a 
declaration  of  the  objects  of  the  constitution,  modeled 
upon  the  preamble  of  the  Constitution  of  the  United 
States ;  and  also,  if  possible — after  the  provisions  insti- 
tuting the  different  parts  of  the  general  international 
directorate,  defining  their  composition  and  the  relations 
of  one  to  the  other,  and  determining  the  sphere  of 
15 


226   The  American  Philosophy  of  Government 

jurisdiction  of  the  whole  directorate  and  each  of  its 
parts  by  a  specification  of  powers — a  bill  of  rights 
democratizing  and  republicanizing  the  relations  between 
the  government  of  each  nation  and  the  people  of  the 
nation  by  establishing  prohibitions,  absolute  or  condi- 
tional, upon  certain  forms  of  governmental  action 
found  by  experience  to  be  injurious  or  destructive  to 
liberty. 

The  institution  of  such  an  international  directorate 
as  has  been  above  proposed  would  not  disturb  any  of 
the  existing  agencies  or  processes  by  which  international 
activities  and  relations  are  now  directed.  The  nations 
would  retain  their  ministries  of  foreign  affairs,  their 
ministries  in  charge  of  dependencies,  their  diplomatic 
and  consular  officers  and  their  courts  functioning  in 
international  cases.  The  judicial  tribunals  and  the  ad- 
ministrative arrangements  ancillary  to  them,  estab- 
lished by  the  Hague  Conferences,  would  be  unchanged. 
Upon  the  present  international  mechanism  the  inter- 
national directorate  would  be  superposed  as  a  means 
of  bringing  all  the  existing  agencies  and  processes  into 
cooperation  and  harmony. 

The  international  directorate  proposed  would  be  but 
an  application  on  a  universal  scale  of  the  system  which 
nearly  all  nations  having  dependencies  have  found  nec- 
essary in  the  management  of  their  colonial  empires. 
The  Privy  Council  and  the  Council  for  India  in  Great 
Britain,  and  the  colonial  councils  of  the  European  na- 
tions, which,  under  the  ministries  for  the  colonies  and 
dependencies,  manage  the  colonial  empires  of  these  re- 
spective nations,  are  in  principle  interstate  directorates, 
holding  together  widely  separated  countries,  diverse  in 
race,  climate,  and  civilization,  by  methods  which  are 
essentially  conciliative.  Though  these  interstate  direc- 
torates are  backed  by  the  physical  force  of  the  nation, 


International  Legislation  227 

physical  force  has  been  found  to  be  inapplicable  in 
holding  dependencies  to  nations  except  when  used  spar- 
ingly and  scientifically  in  aid  of  conciliation,  and  in 
many  cases  to  be  wholly  inapplicable.  The  superin- 
tending directorate  in  colonial  empires  is  in  process  of 
evolution,  and  in  one  or  more  of  them  will  doubtless 
soon  be  a  fact.  The  problem  of  holding  together  the 
widely  separated  nations  of  the  world,  diverse  in  race, 
climate,  and  civilization,  is  clearly  analogous  to  the 
problem  of  managing  colonial  empires.  The  only  differ- 
ence is,  that  the  international  directorate  must  be  a 
delegated  body,  instituted  by  all  the  nations,  which  shall 
be  of  and  for  them  all,  and  shall  carry  the  principles 
of  democracy  and  republicanism  into  international 
relations.  (Cf.  ''The  Administration  of  Dependen- 
cies," by  the  author  of  this  article,  pp.  527-530,  578- 
604,  as  respects  the  management  of  colonial  empires 
by  directive  councils  and  superintending  directive 
bodies,  and  the  applicability  of  the  directorate  form 
of  government  in  political  aggregations  where  the  fed- 
eral-state form  is  inapplicable.) 

The  plan  proposed  would,  of  course,  not  be  a  panacea 
for  all  international  ills.  Each  nation  would  continue 
to  be  free  and  independent.  It  would  reject  or  accept 
the  counsel  of  the  international  directorate  according  as 
it  thought  its  self-interest  demanded.  Secret  treaties 
and  other  forms  of  intrigue,  and  excessive  national 
armaments  to  support  the  intrigues,  would  doubtless 
continue  to  go  on.  Domination  of  the  seas,  of  the  inter- 
national trade  routes,  and  of  the  backward  countries  by 
individual  nations  or  by  a  league  or  leagues  of  nations, 
would  no  doubt  continue  to  be  attempted.  Invisible 
international  government,  in  democracies  and  monar- 
chies, would  undoubtedly  continue  to  be  the  dream  of 
political,  financial,  and  trading  syndicates,  and  to  have 


228   The  American  Philosophy  of  Government 

a  more  or  less  stable  de  facto  existence.  Attempts  would 
probably  be  made  to  pervert  the  international  direc- 
torate to  selfish  national  ends.  Therefore  war  would 
continue  to  be  possible.  But  a  means  would  have  been 
provided  for  the  gradual  abolition  of  all  these  abnormal 
processes  and  agencies  and  for  the  limitation,  by  the 
free  act  of  the  separate  nations,  of  the  excessive  national 
armaments  which  make  these  abnormal  processes  and 
agencies  possible.  Excessive  national  armaments  will 
be  limited  by  the  voluntary  act  of  each  nation  when  it 
ceases  to  be  for  the  self-interest  of  each  nation  to  main- 
tain an  excessive  armament.  When  an  international 
organization,  by  its  successful  operation,  has  made 
some  part  of  a  nation's  armament  unnecessary  and 
therefore  excessive,  the  nation  will,  as  a  matter  of  com- 
mon sense  and  economic  necessity,  scrap  the  part  which 
is  excessive,  and  release  the  capital  and  labor  for  pro- 
ductive employment.  Limitation  of  national  armament 
in  any  other  manner  is,  it  would  seem  impossible.  In 
this  manner  it  may  be  possible. 

That  some  such  international  conciliative  directorate 
as  has  been  suggested,  exercising  legislative  and  admin- 
istrative as  well  as  judicial  direction  of  the  nations  as 
respects  international  matters,  must  sooner  or  later  be 
established,  would  seem  to  be  beyond  doubt.  Destruc- 
tive inventions  have  made  the  strong  nations  and  the 
weak  nations  almost  equally  strong  and  equally  defense- 
less. Constructive  inventions  have  enabled  all  men  and 
nations  to  share  equally  in  the  common  necessities  of 
life  and  in  the  common  knowledge.  All  the  races  of 
men  are  rapidly  becoming  equal  in  physique  and  intelli- 
gence, and  equally  cognizant  of  their  fundamental 
rights. 

The  proper  time  to  begin  the  institution  of  the  new 
system  would  seem  to  be  the  present  moment.    The 


International  Legislation  229 

questions  of  national  existence  and  boundaries  which 
are  now  the  obstacles  to  peace,  are  almost  entirely 
questions  incidental  to  the  rival  ambitions  of  great 
powers.  As  things  now  are,  small  nations  occupying 
strategic  positions  on  international  trade  routes  cannot 
be  allowed  independent  existence  within  boundaries 
determined  by  the  principles  of  nationality  and  equality 
of  national  right  and  opportunity.  These  small  nations 
must,  under  the  present  system,  be  given  such  boun- 
daries and  allowed  such  privileges  as  are  consistent  with 
the  political  and  economic  policies  of  the  nation  or  group 
of  nations  which  for  the  moment  holds  the  balance 
of  power  and  dominates  the  particular  international 
trade  routes  on  which  these  small  nations  are  situated. 
So  long  as  there  is  no  international  direction  to  modify 
and  gradually  to  supplant  the  present  system  of  the 
balance  of  power,  that  system  will  remain,  involving 
all  the  great  powers  in  the  struggle  for  world  power,  and 
leaving  the  small  and  strategically  important  nations 
in  a  condition  of  perpetual  uncertainty  as  respects  their 
boundaries,  their  privileges,  and  even  their  national 
existence.  A  conclusion  of  the  war  which  should  de- 
termine, according  to  the  exigencies  of  the  balance  of 
power,  the  relations  of  the  great  powers  to  each  other 
and  the  privileges  and  boundaries  of  smaller  nations, 
would  greatly  complicate  the  future.  Such  a  peace,  as 
laying  the  foundation  for  a  greater  war  in  the  future, 
might  prove  a  worse  calamity  than  the  war  itself.  The 
most  certain  assurance  against  a  peace  of  this  kind 
would  seem  to  be  a  unanimous  agreement  between  the 
great  powers,  entered  into  during  the  war,  accepting 
the  principle  of  an  international  conciliative  direction 
after  the  war. 

Once  such  an  agreement  were  signed,  it  would  be 
possible  for  the  great  powers,  in  the  treaty  of  peace, 


230    The  American  Philosophy  of  Government 

with  safety  to  each  and  all  and  without  loss  of  dignity 
to  any,  to  adjust  properly  the  relations  of  each  to  the 
other  and  to  determine  scientifically  and  fairly  the 
questions  concerning  the  existence,  rights,  and  bounda- 
ries of  the  smaller  nations  and  the  claims  of  the  na- 
tionalities which  are  aspiring  to  nationhood.  A  treaty 
of  peace  so  made  would  form  a  sound  basis  for  the 
future  orderly  and  peaceful  cooperative  development 
of  all  nations,  and  would  greatly  simplify  the  work 
of  the  international  directorate  which  would  be  form- 
ally instituted  after  the  war  through  a  constitutional 
convention  of  all  nations. 


LEGAL   LIMITATION  OF   ARBITRAL 
TRIBUNALS 


aji 


LEGAL  LIMITATION  OF  ARBITRAL 
TRIBUNALS 

Reprinted  from  University  of  Pennsylvania  Law  Review,  Vol.  60, 
December,  19 11 

UNTIL  the  year  1776,  the  doctrine  prevailed  uni- 
versally among  the  civilized  nations  that  there 
must  be  one  part  of  the  government  of  every 
independent  state  in  which  was  vested  legally  unlimited 
power ;  the  part  of  the  government  which  exercised  this 
legally  unlimited  power  being  regarded  as  the  source  of 
the  law  of  the  state.  In  some  states,  this  legally  un- 
limited power  was  regarded  as  vested  in  the  Monarch; 
in  others  in  Parliament. 

In  1776,  as  the  result  of  ten  years'  consideration  by 
the  American  Colonies  of  the  claim  of  Great  Britain 
that  its  Parliament  had  the  right  to  exercise  legally 
unlimited  power  over  them,  the  United  States  of  Amer- 
ica came  into  existence  under  a  Declaration  of  Inde- 
pendence, which  was  at  the  same  time  an  Agreement  of 
Union,  and  the  preamble  of  which  was  a  Fundamental 
Constitution  of  the  United  States.  By  this  Fundamen- 
tal Constitution, — which  today  exists  in  full  force, 
underlying  the  Constitution  of  1787, — a  new  political 
doctrine  was  advanced  and  a  new  political  system  was 
founded.  According  to  this  Fundamental  Constitution, 
all  governmental  power  is  held  to  be  legally  limited — 
primarily  by  the  principles  of  supreme  universal  law, 
and  secondarily  by  the  supreme  organic  law  of  each 
particular  society,  made  theoretically  by  all  the  people  of 

233 


234   The  American  Philosophy  of  Government 

the  society  assembled,  and  determining  the  structure  of 
the  society  and  the  relations  of  the  parts.  The  principles 
of  supreme  universal  law  are  those  which  grow  out  of 
the  nature  of  man  and  society.  Each  political  society 
as  a  necessity  to  its  own  existence  is  regarded  as  secur- 
ing to  each  individual  his  self-protection  and  self- 
preservation — the  protection  and  preservation  of  the 
individual  being  necessary  to  the  protection  and  preser- 
vation of  society.  These  rights  of  the  individual,  grow- 
ing out  of  his  human  nature  and  his  relation  to  his 
Creator,  and  out  of  the  nature  of  human  society,  are 
held  to  be  "unalienable"  and  hence  universal.  The 
Declaration  does  not  purport  to  state  all  the  principles 
of  the  supreme  universal  law.  It  only  declares  that 
"among"  these  unalienable  rights  are  the  rights  of 
"life,  liberty  and  the  pursuit  of  happiness."  The 
rights  thus  named  are  clearly  rights  of  self-protec- 
tion and  self-preservation.  On  the  necessity  of  self- 
protection  and  self-preservation  in  order  that  society 
may  exist,  and  on  the  necessity  of  there  being  an  organ- 
ization of  every  society,  made  theoretically  by  all  the 
people  assembled,  before  there  can  be  a  government, 
the  preamble  of  the  Declaration  of  Independence  based 
the  American  doctrine  that  all  governmental  power  is 
by  the  necessity  of  the  case  legally  limited.  The 
American  doctrine  of  legally  limited  governmental 
power  became  thus  opposed  to  the  European  doctrine 
of  legally  unlimited  governmental  power,  and  there 
was  founded  an  American  system  which  was  opposed  to 
the  European  system. 

The  success  of  the  United  States  in  the  American 
Revolution  estabHshed  the  American  system.  In  1787, 
the  Constitution  of  the  United  States  was  adopted, 
giving  to  the  world  a  proof  that  the  American  system 
could  be  worked  out  in  a  practical  form.    By  the  Con- 


Limitation  of  Arbitral  Tribunals  235 

stitution,  the  theory  of  the  Declaration  was  translated 
into  a  political  fact. 

In  1823,  the  South  American  countries  had  become 
independent  and  free  to  choose  whatever  system  they 
might  prefer.  The  "Holy  AlHance"  of  the  powers  of 
Continental  Europe  threatened  to  extend  the  European 
system  to  South  America  by  force.  In  that  year 
President  Monroe,  with  the  informal  concurrence  of 
both  Houses  of  Congress  and  with  the  approval  of  the 
American  people,  in  a  Message  to  Congress,  announced 
as  the  distinctive  policy  of  the  United  States,  that  the 
European  system  should  not  be  extended  to  the  West- 
ern Hemisphere  by  European  force,  on  the  ground  that 
such  an  extension  would  tend  to  destroy  the  American 
system,  which  the  people  of  the  United  States  believed 
to  be  essential  to  peace  and  order.  In  that  Message 
he  said: 

The  political  system  of  the  Allied  Powers  is  essentially 
different  .  .  .  from  that  of  America.  This  difference  pro- 
ceeds from  that  which  exists  in  their  respective  govern- 
ments; and  to  the  defence  of  our  own,  which  has  been 
achieved  by  the  loss  of  so  much  blood  and  treasure,  and 
matured  by  the  wisdom  of  their  most  enlightened  citizens, 
and  under  which  we  have  enjoyed  unexampled  felicity,  this 
whole  nation  is  devoted.  We  owe  it,  therefore,  to  candor 
and  to  the  amicable  relations  existing  between  the  United 
States  and  those  Powers,  to  declare  that  we  should  consider 
any  attempt  on  their  part  to  extend  their  system  to  any 
portion  of  this  hemisphere  as  dangerous  to  our  peace  and 
safety.  .  .  .  It  is  impossible  that  the  Allied  Powers  should 
extend  their  political  system  to  any  portion  of  either  conti- 
nent without  endangering  our  peace  and  happiness. 

The  Civil  War  abolished  slavery  and  thus  removed 
the  inconsistency  between  our  doctrine  and  our  prac- 


236   The  American  Philosophy  of  Government 

tice,  which  had  up  to  that  time  led  to  impossible  com- 
promises and  to  an  attempt  to  regard  the  preamble  of 
the  Declaration  as  a  statement  of  ''glittering  general- 
ities." By  the  Fourteenth  and  Fifteenth  Amendments 
to  the  Constitution  the  American  system  was  completed. 

The  European  system  of  legally  imlimited  govern- 
mental power  results  logically  in  what  is  called  the 
* 'sovereignty"  of  independent  states.  "Sovereign" 
states  live  theoretically  in  a  condition  of  omnipotence 
and  unsociability.  When  they  come  into  contact  with 
other  "sovereign"  states,  they  fight  or  agree.  "Sov- 
ereign" states  are  theoretically  not  subject  to  "law"; 
they  are  above  law  and  make  law  for  non-sovereign 
communities  which  they  control  by  force.  Hence  on 
the  European  system  judicial  settlement  of  disputes 
between  nations  is  theoretically  inconceivable,  and  ar- 
bitration tends  to  be  only  a  political  compromise  made 
by  high  diplomatic  officials  when  the  ordinary  diplo- 
matic officials  are  unable  to  agree. 

According  to  the  American  system,  there  is  no  gov- 
ernmental omnipotence  and  hence  no  state  omnipo- 
tence. States  are  merely  large  corporations  created  by 
the  people  of  the  states  assembled  for  the  purpose  of 
collective  and  individual  self -protection  and  self-preser- 
vation, and  organized  and  vested  with  specific  powers 
for  this  purpose.  Like  other  corporations,  states  are 
assumed  to  exist  in  society.  They  are  hence  amenable 
to  law,  and  disputes  between  them  are  to  be  settled  by 
courts.  Hence  the  Supreme  Court  of  the  United  States 
has  jurisdiction  of  cases  to  which  the  United  States  is 
a  party  and  of  controversies  between  states.  The 
American  states  willingly  submit  their  differences  to 
settlement  by  the  Supreme  Court,  because  that  Court, 
like  every  other  part  of  the  American  Government, 
acts  under  the  Bill  of  Rights  and  the  other  provisions 


Limitation  of  Arbitral  Tribunals  237 

of  the  Constitution  and  is  legally  limited  by  all  the 
applicable  provisions  of  the  Constitution  in  each  case 
that  arises  before  it.  In  the  United  States  proper,  the 
Supreme  Court  is  legally  limited  by  all  the  provisions 
of  the  Constitutional  Bill  of  Rights,  in  their  literal 
sense;  and  also  by  the  organic  provisions  of  the  Con- 
titution — the  provisions  which  determine  the  relations 
of  the  states  to  each  other  and  to  the  United  States — 
in  their  literal  sense.  In  the  political  society  composed 
of  the  United  States  and  the  countries  and  places  under 
its  jurisdiction,  the  Supreme  Court  is  legally  limited, 
as  it  has  recognized  by  its  own  decisions,  by  those 
provisions  of  the  Constitutional  Bill  of  Rights  which  are 
of  universal  import,  and  by  the  organic  provisions  of 
an  unwritten  or  customary  Constitution,  based  on  the 
Constitution  of  the  United  States  and  formed  by  apply- 
ing the  provisions  of  that  Constitution,  not  in  their 
literal  sense,  but  according  to  "the  general  spirit  of 
the  Constitution,"  as  reasonable  customs,  in  such 
manner  as  may  be  needful  to  suit  the  circumstances  of 
this  greater  political  society  and  its  component  parts. 

In  suits  between  states,  or  to  which  the  United  States 
is  a  party,  the  Supreme  Court,  acting  under  the  Con- 
stitutional Bill  of  Rights,  holds  void  and  ignores  any 
governmental  action  occiu-ring  in  the  United  States  or 
in  any  country  or  place  tmder  its  jurisdiction,  which 
deprives  any  person  or  personality  of  his  or  its  life, 
liberty  or  property  without  due  process  of  law;  and 
upholds  the  organic  provisions  of  whichever  Constitu- 
tion may  be  involved — the  written  Constitution  in  the 
case  of  the  political  society  known  as  "the  United 
States  of  America,"  and  the  unwritten  one  in  the  case 
of  the  greater  poHtical  society  composed  of  this  nation 
and  the  countries  and  places  annexed  to  it  and  under 
its  jurisdiction. 


238    The  American  Philosophy  of  Government 

The  United  States,  however,  three  years  ago  agreed 
by  treaties  with  a  number  of  foreign  nations,  to  submit 
to  arbitration  certain  kinds  of  disputes  which  it  might 
have  with  them,  and  it  is  now  proposed  to  extend  some 
of  these  arbitration  treaties  so  that  they  will  cover  a 
much  wider  field.  The  question  arises  whether  these 
treaties,  if  they  are  constitutional,  are  consistent  with 
the  American  system;  or  to  state  it  differently,  whether 
these  treaties,  if  they  are  constitutional,  do  not  commit 
the  United  States  to  the  European  system. 

The  arbitration  treaty  between  the  United  States  and 
Great  Britain  of  1908,  and  the  other  existing  arbitra- 
tion treaties  of  the  same  year  and  of  later  date,  provide, 
among  other  things,  as  follows: 

"  Differences  which  may  arise  of  a  legal  nature  or  relating 
to  the  interpretation  of  treaties  existing  between  the  two 
contracting  parties  and  which  it  may  not  have  been  possible 
to  settle  by  diplomacy,  shall  be  referred  to  the  Permanent 
Court  of  Arbitration  estabhshed  at  The  Hague  by  the 
Convention  of  the  29th  of  July,  1899 ;  provided,  nevertheless, 
that  they  do  not  affect  the  vital  interests,  the  independence, 
or  the  honor  of  the  two  contracting  States,  and  do  not 
concern  the  interests  of  third  parties. 

"In  each  individual  case  the  high  contracting  parties, 
before  appealing  to  the  Permanent  Court  of  Arbitration, 
shall  conclude  a  special  agreement  defining  clearly  the  mat- 
ter in  dispute,  the  scope  of  the  powers  of  the  arbitrators, 
and  the  periods  to  be  fixed  for  the  formation  of  the  arbitral 
tribunal  and  the  several  stages  of  the  procedure." 

Nothing  is  said  in  these  treaties  concerning  any  legal 
limitations  on  the  power  of  the  tribunal.  The  parties 
are  in  each  case  to  conclude  a  special  agreement  "de- 
fining .  .  .  the  scope  of  the  powers  of  the  arbitrators." 
The  Convention  for  the  Pacific  Settlement  of  Inter- 


Limitation  of  Arbitral  Tribunals  239 

national  Disputes,  of  the  29th  of  July,  1899,  likewise 
makes  no  mention  of  legal  limitations  upon  the  powers 
of  the  arbitral  tribunal.  By  that  Convention  it  was 
agreed  that  "international  arbitration  has  for  its  object 
the  settlement  of  differences  between  states  by  judges 
of  their  own  choice,  and  on  the  basis  of  respect  for  law." 
The  arbitrators  are  to  be  persons  ''of  known  compe- 
tency in  questions  of  international  law,"  and  the  powers 
who  have  recourse  to  arbitration  are  to  sign  a  special 
act  in  which  ''the  extent  of  the  arbitrators'  powers" 
is  to  be  " clearly  defined."  (Articles,  15,  23,  31 .)  There 
is  nowhere  in  the  treaties  or  in  the  convention  any  sug- 
gestion of  limitations  upon  the  arbitral  tribunal  under 
a  law  which  is  binding  upon  the  tribunal  and  the  dis- 
putant nations.  The  expression  "on  the  basis  of 
respect  for  law"  is  indefinite  and  recommendatory, 
binding  the  tribunal  to  nothing.  The  powers  of  the 
arbitrators  are  legally  unlimited.  They  may  be  re- 
stricted by  the  agreement  of  the  parties,  but  they  are 
not  restricted  by  law. 

It  may  therefore  happen  that  a  case  between  states, 
or  involving  a  dispute  between  states,  which  has  been 
tried  by  the  Supreme  Court  of  the  United  States  acting 
under  all  the  applicable  provisions  of  the  Constitution, 
and  which  has  been  decided  by  it  with  reference  to 
these  limitations,  may  be  retried  in  an  arbitration  pro- 
ceeding by  a  tribunal  which  is  without  any  legal  limita- 
tion whatever,  and  decided  in  an  entirely  different 
manner.  So  the  arbitral  tribunal  may  decide  a  case  on 
the  principle  of  political  compromise  or  on  the  principle 
of  regulating  the  balance  of  power,  and  without  at- 
tempting to  apply  legal  principles.  Of  course,  these 
difficulties  might  to  some  extent  be  met  by  the  special 
agreement  made  in  each  case ;  but  any  limitations  upon 
the  powers  of  the  arbitrators  arising  out  of  the  agree- 


240  The  American  Philosophy  of  Government 

ment  would  not  resemble,  either  in  form  or  in  effect, 
those  legal  limitations  which  rest  upon  courts  as  parts 
of  a  system  of  government  based  on  legally  limited 
powers. 

The  existing  treaties  provide  that  they  shall  expire 
in  five  years  from  the  date  of  their  ratification.  This 
fact,  coupled  with  the  fact  that  they  apply  only  to  a 
small  class  of  cases  and  reserve  to  each  disputant  nation 
the  right  to  withdraw  cases  from  arbitration,  makes 
these  treaties  of  little  consequence  as  providing  an 
immediate  substitute  for  war.  Whenever  there  is  any 
danger  to  one  of  the  contracting  nations  from  a  pro- 
posed arbitration,  the  case  is  withdrawn  from  arbitra- 
tion by  that  party  as  one  affecting  its  'Vital  interests, 
independence  or  honor." 

New  treaties  have  recently  been  signed  with  Great 
Britain  and  France  for  the  purpose  of  extending  the 
practice  of  arbitration  to  all  ''justiciable"  cases  and 
making  withdrawal  of  "justiciable"  cases  practically 
impossible.  The  question  whether  these  treaties  shall 
be  ratified  is  one  of  great  importance.  We  have  no 
longer  to  consider  treaties  which  apply  only  to  a  small 
class  of  cases,  which  reserve  to  each  of  the  disputant 
nations  an  almost  discretionary  right  of  withdrawing 
cases  from  arbitration,  and  which  are  to  be  in  force  for 
a  short  period.  If  the  pending  treaties  are  ratified,  and 
if  they  are  constitutional,  arbitration  of  most  of  the 
disputes  between  the  contracting  nations  will  become 
a  permanent  institution,  and  tremendous  interests  will 
be  involved. 

The  pending  treaties  provide,  among  other  things, 
as  follows:     (Article  I.) 

"All  differences  hereafter  arising  between  the  high  con- 
tracting parties,  which  it  has  not  been  possible  to  adjust  by 


Limitation  of  Arbitral  Tribtinals  241 

diplomacy,  relating  to  international  matters  in  which  the 
high  contracting  parties  are  concerned  by  virtue  of  a  claim 
of  right  made  by  one  against  the  other  under  treaty  or 
otherwise,  and  which  are  justiciable  in  their  nature  by 
reason  of  being  susceptible  of  decision  by  the  application  of 
the  principles  of  law  or  equity,  shall  be  submitted  to  the 
Permanent  Court  of  Arbitration  established  at  The  Hague 
by  the  Convention  of  October  18,  1907,  or  to  some  other 
tribunal,  as  may  be  decided  in  each  case  by  special  agree- 
ment, which  special  agreement  shall  provide  for. the  organi- 
zation of  such  tribunal  if  necessary,  define  the  scope  of  the 
powers  of  the  arbitrators,  the  question  or  questions  at  issue, 
and  settle  the  terms  of  reference  and  the  procedure  there- 
under. 

**  The  provisions  of  Articles  37  to  90,  inclusive,  of  the  Con- 
vention for  the  Pacific  Settlement  of  International  Disputes 
concluded  at  the  second  Peace  Conference  at  The  Hague  on 
the  1 8th  October,  1907,  so  far  as  applicable,  and  unless  they 
are  inconsistent  with  or  modified  by  the  provisions  of  the 
special  agreement  to  be  concluded  in  each  case,  and  except- 
ing Articles  53  and  54  of  such  convention,  shall  govern  the 
arbitration  proceedings  to  be  taken  under  this  treaty." 

These  treaties,  it  will  be  noticed,  are  the  same  as  the 
existing  treaties,  in  the  fact  that  they  do  not  recognize 
any  legal  limitations  as  binding  on  the  arbitral  tribunal. 
A  special  agreement  is  to  be  made  defining  the  scope 
of  the  powers  of  the  arbitrators,  but  neither  in  this 
provision,  nor  in  the  Convention  of  18th  October,  1907, 
is  there  any  legal  limitation  recognized.  Article  37  of 
this  Convention  is  the  same  as  Article  15  of  the  Con- 
vention of  1899,  and  declares  that  international  arbi- 
tration is  to  proceed  ''on  the  basis  of  respect  for  law." 
"Justiciable"  cases  are  to  be  submitted  to  arbitration 
and  justiciable  cases  are  defined  as  those  "susceptible 
of  decision  by  the  application  of  the  principles  of  law 
or  equity";  but  there  is  no  requirement  that  the  arbi- 
16 


242   The  American  Philosophy  of  Government 

trators  shall  decide  these  justiciable  cases  according  to 
the  principles  of  law  or  equity,  and  no  legal  limitation 
of  any  kind  is  recognized  as  binding  upon  them. 

The  provision  limiting  the  withdrawal  of  cases  from 
arbitration  on  the  ground  that  they  are  not  * 'justici- 
able" is  as  follows:     (Articles  II  and  III.) 

"The  high  contracting  parties  further  agree  to  institute 
as  occasion  arises,  and  as  hereinafter  provided,  a  Joint 
High  Commission  of  Inquiry,  to  which,  upon  the  request 
of  either  party,  shall  be  referred  for  impartial  and  conscien- 
tious investigation  any  controversy  between  the  parties 
within  the  scope  of  Article  I,  before  such  controversy  has 
been  submitted  to  arbitration,  and  also  any  other  contro- 
versy hereafter  arising  between  them,  even  if  they  are  not 
agreed  that  it  falls  within  the  scope  of  Article  I.   .    .    . 

"It  is  further  agreed,  however,  that  in  cases  in  which  the 
parties  disagree  as  to  whether  or  not  a  difference  is  subject 
to  arbitration  under  Article  I  of  this  treaty,  that  question 
shall  be  submitted  to  the  Joint  High  Commission  of  Inquiry; 
and  if  all  or  all  but  one  of  the  members  of  the  Commission 
agree  and  report  that  such  difference  is  within  the  scope  of 
Article  I,  it  shall  be  referred  to  arbitration  in  accordance 
with  the  provisions  of  this  treaty." 

This  last  paragraph  has  been  held  by  the  majority 
of  the  Senate  Committee  on  Foreign  Relations  to  have 
the  legal  effect  to  obligate  (or  attempt  to  obligate)  this 
nation  to  arbitrate  any  dispute  with  Great  Britain  or 
France  which  the  Joint  High  Commission  shall  hold  to 
be  arbitrable  (justiciable)  either  by  a  unanimous  vote 
or  by  the  vote  of  a  majority  which  includes  all  but  one 
member.  The  majority  of  the  Senate  Committee,  in 
their  report  of  August  15,  191 1,  therefore  recommended 
the  omission  of  this  paragraph  as  attempting  to  impair 
the  constitutional  power  of  the  Senate  to  ratify  treaties, 
by  delegating  to  a  tribunal  the  right  to  decide  the 


Limitation  of  Arbitral  Tribunals  243 

question  of  arbitr ability  of  international  disputes. 
After  quoting  the  last  paragraph  above  quoted,  it 
was  said: 

"  It  will  be  seen  by  examination  of  the  clause  just  quoted 
that  if  the  Joint  Commission,  which  may  consist  of  one  or 
more  persons,  which  may  be  composed  wholly  of  foreigners 
or  wholly  of  nationals,  decides  that  the  question  before  them 
is  justiciable  under  Article  I,  it  must  then  go  to  arbitration 
whether  the  treaty-making  power  of  either  country  believes 
it  to  be  justiciable  or  not.  A  special  agreement,  coming  to 
the  Senate  after  the  Joint  Commission  had  decided  the 
question  involved  to  be  justiciable,  could  not  be  amended 
or  rejected  by  the  Senate  on  the  ground  that  in  their  opinion 
the  question  was  not  justiciable,  and  did  not  come  within 
the  scope  of  Article  I.   .    .    . 

' '  In  approving  Article  I  of  the  treaty  the  Committee  as- 
sents to  the  arbitration  of  all  questions  coming  within  the 
rule  there  prescribed.  The  terms  in  which  the  rule  is  stated 
are,  however,  quite  vague  and  indefinite,  and  they  are 
altogether  new  in  international  proceedings.  It  is  possible 
that  others  may  take  an  entirely  different  view  from  that 
entertained  by  the  Committee  or  by  the  negotiators  of  the 
treaty  as  to  what  was  meant  by  justiciable  or  as  to  what  was 
meant  by  the  principles  of  law  or  equity  when  applied  to 
international  affairs,  and  in  the  absence  of  any  established 
rules  of  international  law  for  the  construction  of  such  pro- 
visions and  of  any  precedents,  others  might  put  upon  these 
provisions  a  construction  entirely  different  from  that  which 
the  treaty-making  power  now  intends.  Under  these  cir- 
cumstances to  vest  in  an  outside  Commission  the  power  to 
say  finally  what  the  treaty  means  by  its  very  general  and 
indefinite  language  is  to  vest  in  that  Commission  the  power 
to  make  for  us  an  entirely  different  treaty  from  that  which 
we  supposed  ourselves  to  be  making." 

The  effect  of  the  treaties,  is,  therefore,  in  the  opinion 
of  the  majority  of  the  Senate  Committee,  to  attempt 


244    The  American  Philosophy  of  Government 

to  establish  a  system  of  joint  judiciary  for  the  three 
nations,  and  to  delegate  to  the  joint  judiciary  the  power 
to  determine  the  limits  of  its  own  jurisdiction. 

On  November  8,  191 1,  Secretary  of  State  Knox  de- 
livered an  address  on  ''The  Pending  Arbitration 
Treaties"  at  Cincinnati,  before  the  American  Society 
for  Judicial  Settlement  of  International  Disputes,  in 
which  he  placed  a  different  meaning  on  the  paragraph 
in  question.  In  that  address,  the  Secretary  of  State 
quoted  the  following  provisions  from  the  pending 
treaties : 

(From  the  Treaty  with  Great  Britain.)  "The  special 
agreement  in  each  case  shall  be  made  on  the  part  of  the 
United  States  by  the  President  of  the  United  States,  by 
and  with  the  advice  and  consent  of  the  Senate  thereof, 
His  Majesty's  Government  reserving  the  right  before  con- 
cluding a  special  agreement  in  any  matter  affecting  the 
interests  of  a  self-governing  Dominion  of  the  British  Empire 
to  obtain  the  concurrence  therein  of  the  Government  of 
that  Dominion." 

(From  the  Treaty  with  France.)  "  The  special  agreement 
in  each  case  shall  be  made  on  the  part  of  the  United  States 
by  the  President  of  the  United  States,  by  and  with  the 
advice  and  consent  of  the  Senate  thereof,  and  on  the  part 
of  France  subject  to  the  procedure  required  by  the  consti- 
tutional laws  of  France." 

The  Secretary  of  State  in  his  address  said : 

"  Although  in  the  pending  treaties  the  Executive  branches 
of  the  Governments  concerned  agree  to  be  bound  by  the 
decision  of  the  Commission  as  to  the  arbitrability  of  a 
question  upon  which  the  Executive  branches  do  not  agree, 
this  decision  is  subject  to  the  approval  of  the  self-governing 
Colonies  of  Great  Britain,  if  the  question  affects  them,  and 
to  the  approval  of  the  Senate  of  the  United  States,  and  in 


Limitation  of  Arbitral  Tribtinals  245 

certain  cases  the  Senate  and  Chamber  of  Deputies  of  France, 
to  whom  the  right  of  approval  is  expressly  reserved  in  each 
case. 

"  Every  agreement  to  arbitrate  must  go  to  the  Senate  for 
its  approval.  There  can  be  no  arbitration  without  its 
approval.  An  agreement  to  arbitrate  goes  to  the  Senate 
for  its  approval  either  because  the  Executive  branches  of 
the  two  countries  concerned  in  the  difference  agree  that 
the  difference  is  one  for  arbitration  or  because,  failing  so  to 
agree,  the  Commission  of  Inquiry  report  that  it  is  such  a 
difference. 

"  How  can  the  Senate's  power  over  the  agreement  be  less 
if  it  goes  to  the  Senate  after  the  Commission's  report  that 
it  presents  an  arbitrable  question  than  if  it  had  gone  there 
because  of  the  opinion  of  the  Executive  branches  of  both 
Governments  to  the  same  effect? 

"  If  the  two  Governments  agree  that  the  difference  is 
arbitrable,  they  make  an  agreement  to  arbitrate  it  and  it 
is  sent  to  the  Senate  for  its  approval.  If  the  two  Govern- 
ments cannot  agree  that  the  difference  is  arbitrable  that 
ends  the  matter  until  the  Commission  reports,  and  if  its 
report  is  that  the  difference  is  arbitrable,  an  agreement  is 
made  to  arbitrate  it  and  the  agreement  is  sent  to  the  Senate 
for  approval  just  as  if  no  such  question  had  been  raised,  and 
the  Senate  deals  with  it  with  unimpaired  powers." 

The  Secretary  of  State  thus  asserts  that  the  true 
construction  of  the  pending  Treaties  is,  that  "the  Ex- 
ecutive branches  of  the  Governments  concerned  agree 
to  be  bound  by  the  decision  of  the  Commission  as  to 
the  arbitrability  of  a  question  upon  which  the  Executive 
branches  do  not  agree,"  and  that  at  the  same  time, 
after  a  decision  has  been  made  by  the  Joint  High  Com- 
mission that  a  certain  question  is  arbitrable  (justici- 
able), the  Senate  of  the  United  States,  by  reason  of 
the  reservation  of  its  powers  respecting  the  special 
agreement  in  each  case,   deals  with  the  question  of 


246  The  American  Philosophy  of  Government 

arbitrability  "with  unimpaired  powers."  The  last 
paragraph  of  Article  III,  as  construed  by  the  Secretary 
of  State,  should,  therefore,  in  order  to  conform  to  his 
construction,  read  as  follows: 

"It  is  further  agreed,  however,  that  in  cases  in  which  the 
parties  disagree  as  to  whether  or  not  a  difference  is  subject 
to  arbitration  under  Article  I  of  this  Treaty,  that  question 
shall  be  submitted  to  the  Joint  High  Commission  of  In- 
quiry; and  if  all  or  all  but  one  of  the  members  of  the  Com- 
mission agree  and  report  that  such  difference  is  within  the 
scope  of  Article  I,  the  Executive  branches  of  the  Govern- 
ments concerned  shall  be  bound  by  the  decision  of  the  Com- 
mission as  to  the  arbitrability  of  the  question,  but  the 
Senate  of  the  United  States  in  all  cases  (and  also  a  self- 
governing  Dominion  of  the  British  Empire  in  cases  involv- 
ing its  interests  under  a  treaty  signed  by  Great  Britain; 
and  also  the  Senate  and  Chamber  of  Deputies  of  France  in 
cases  where  they  have  the  constitutional  right  of  ratification 
of  treaties  signed  by  the  President  of  the  French  Republic) 
may,  by  virtue  of  their  reserved  rights  regarding  special 
agreements  hereunder,  deal  with  the  question  of  arbitra- 
bility with  unimpaired  powers." 

The  power  of  the  Senate  of  the  United  States  under 
the  Constitution  is  to  advise  with  the  President  con- 
cerning treaties  and  to  accept,  amend  or  reject  them. 
There  is  no  power  given  by  the  Constitution  to  the 
Senate  to  veto  the  conclusions  of  a  political  tribunal  or 
to  overrule  the  decisions  of  a  judicial  tribunal. 

The  meaning  given  to  the  pending  Treaties  by  the 
Secretary  of  State  would  make  it  possible  for  one  part 
of  the  Government  of  the  United  States — the  Presi- 
dent— to  be  bound  by  the  decision  of  a  tribunal  regard- 
ing a  foreign  matter,  while  another  branch — the  Senate 
— was  not  bound.    Such  a  situation  would  seem  likely 


Limitation  of  Arbitral  Tribunals  247 

to  result  in  a  war  which  would  be  at  once  civil  and 
international. 

The  action  of  the  Senate  of  the  United  States  in 
overruling  a  decision  of  the  Joint  High  Commission 
would  not  resemble  that  of  a  self-governing  Dominion 
of  the  British  Empire  in  overruHng  such  a  decision. 
The  Dominion  would  in  this  case  act  as  a  third  party 
whose  interests  were  affected  and  who  refused  to  be 
bound  by  the  act  of  Great  Britain.  Nor  would  the 
action  of  the  Senate  of  the  United  States  resemble  that 
of  the  Senate  and  Chamber  of  Deputies  of  France  in 
overruling  such  a  decision;  for  there  can  be  no  doubt 
but  that  if  both  these  Chambers  united  in  overruling 
such  a  decision,  the  matter  would  be  settled  so  far  as 
France  was  concerned,  since  the  two  Chambers  together 
would  certainly  represent  the  united  will  and  purpose 
of  the  people  of  France.  To  place  the  responsibiHty 
on  one  Chamber  in  such  a  case  is  far  different  from 
placing  it  on  the  two  Chambers. 

The  interpretation  placed  on  the  pending  treaties  by 
the  Secretary  of  State  is,  of  course,  not  binding  unless 
acquiesced  in  by  the  Senate  and  by  the  nations  which 
are  parties  to  the  pending  treaties.  Therefore,  as  there 
exists  a  difference  at  present  between  the  majority  of 
the  Senate  Committee  and  the  Secretary  of  State  as  to 
the  meaning  of  the  treaties,  the  opinion  of  the  majority 
of  the  Senate  Committee  will,  for  the  purposes  of  this 
article,  be  assumed  to  be  correct.  If  the  pending  trea- 
ties have  the  meaning  given  to  them  by  the  Secretary 
of  State,  it  would  seem  that,  though  they  may  perhaps 
be  constitutional,  it  is  improbable  that  they  will  be 
supported  by  the  public  sentiment  of  the  nation.  If 
they  have  the  meaning  attributed  to  them  by  the  major- 
ity of  the  Senate  Committee,  the  point  made  in  their 
report  that  the  treaties  are  unconstitutional  as  impair- 


248   The  American  Philosophy  of  Government 

ing  the  constitutional  right  of  the  Senate  to  ratify 
treaties  seems  unanswerable.  There  are,  however,  some 
other  considerations  regarding  the  pending  treaties,  on 
this  construction  of  them,  with  which  it  is  the  purpose 
of  this  article  to  deal. 

These  treaties  are,  it  would  seem,  objectionable  be- 
cause they  attempt  to  subject  a  great  and  indeterminate 
part  of  the  foreign  interests  of  the  United  States  to  a 
tribunal  which  exercises  powers  without  legal  limita- 
tion— that  is,  to  a  tribunal  which  exercises  arbitrary 
power — without  reserving  to  the  President,  or  to  the 
President  and  Senate,  or  to  the  Congress,  an  unimpaired 
discretionary  power  to  withdraw  cases  from  arbitration 
sufficiently  broad  to  enable  us  to  protect  our  system 
and  our  vital  interests. 

We  submit  all  our  domestic  questions  to  legally 
limited  tribunals.  Consequently,  it  seems  clear  that  if 
we  adopt  the  system  attempted  to  be  established  by 
these  treaties,  we  shall  to  that  extent  abandon  the 
American  system  and  adopt  the  European.  That  which 
we  fought  the  Revolution  to  gain,  that  which  we 
defended  by  the  Monroe  Doctrine,  that  which  we  waged 
the  Civil  War  to  perfect,  we  shall  voluntarily  yield. 
The  European  and  American  systems  will  have  met, 
and  the  European  system  will  have  prevailed.  It  is 
highly  improbable  that  the  decisions  of  a  legally  un- 
limited tribunal  would  lead  to  peace.  We  obey  the 
Supreme  Court  because  it  is  legally  Hmited,  and  because 
it  acts  within  these  established  limits  and  for  certain 
definite  purposes,  as  a  part  of  the  carefully  wrought 
out  mechanism  of  our  government.  We  shall  not  be 
likely  to  obey  a  tribunal  which  has  no  legal  limits, 
which  is  bound  by  no  law,  which  is  disconnected  from 
the  government  of  any  nation,  and  which  exists  above 
the  nations  which  create  it,  theoretically  omnipotent 


Limitation  of  Arbitral  Tribunals  249 

except  as  the  disputant  nations  make  subtractions  from 
its  omnipotence  by  a  special  agreement  in  each  case. 
Such  a  tribunal  might  ignore  the  international  status 
quo,  or  it  might  uphold  national  action  which  deprived 
persons,  corporations  or  communities  of  life,  liberty  or 
property  without  due  process  of  law,  or  which  impaired 
the  obligation  of  contracts,  or  which  imposed  compul- 
sion in  religious  matters,  or  it  might  force  the  parties 
to  make  a  political  compromise.  If  an  unsatisfactory 
decision  should  be  made  by  such  a  tribunal  and  if  the 
American  people  should  be  met  by  the  claim  that  they 
had  consented  by  these  treaties  to  the  exercise  of  arbi- 
trary power,  they  would  doubtless  answer,  as  their 
Revolutionary  ancestors  did  when  British  philosophers 
asserted  that  they  had  consented  to  the  exercise  of 
legally  unlimited  power  over  them  by  the  British  Par- 
liament by  reason  of  their  having  accepted  royal  char- 
ters, that  consent  to  the  exercise  of  legally  unlimited 
power  is  a  nullity,  and  acquiescence  in  the  exercise  of 
such  power  impossible. 

It  may  be  said  that  the  power  exercised  by  the  arbi- 
tral tribunal  is  judicial,  and  that  judicial  power  is  not 
arbitrary  power.  That,  however,  is  not  American  doc- 
trine. We  bind  our  courts  by  legal  limitations,  equally 
with  our  legislatures  and  our  executives;  for  we  know 
by  experience  that  arbitrary  power  may  be  exercised 
under  the  judicial  guise  and  that  this  is  the  most 
insidious  of  all  forms  of  arbitrary  power. 

But  it  may  be  said  that  it  is  impossible  to  impose  on 
arbitral  tribunals  legal  limitations  like  those  which  the 
people  of  the  United  States  impose  on  their  courts ;  and 
particularly  like  those  which  they  impose  on  the 
Supreme  Court  of  the  United  States  when  it  sits  as  a 
tribunal  to  settle  disputes  between  States.  In  view  of 
this  supposed  impossibility,  it  may  be  urged  that  it  is 


250   The  American  Philosophy  of  Government 

necessary  that  we  trust  our  lives  and  properties  in 
disputes  with  other  nations  to  tribunals  with  arbitrary 
power,  as  a  course  of  action  more  conducive  to  peace 
and  order  than  fighting.  The  experience  of  mankind, 
however,  proves  that  the  only  decisions  that  keep  the 
peace  are  those  made  by  courts,  that  is,  by  tribunals 
which  act  as  a  part  of  the  machinery  of  a  political 
society,  which  are  legally  limited  by  the  fundamental 
principles  of  supreme  universal  law  duly  formulated, 
and  by  the  organic  constitution  of  the  society;  and 
which  apply  and  interpret  the  law  of  the  society  in 
cases  duly  brought  before  them.  Decisions  of  persons 
or  tribunals  having  arbitrary  power  lead  quite  as  often 
to  disorder  as  to  order. 

It  therefore  becomes  important  that  we  examine  the 
proposition  that  it  is  impossible  that  tribunals  for 
settling  disputes  between  nations  should  have  legally 
limited  powers.  This  requires  an  investigation  of  some 
of  the  fundamental  ideas  which  yet  prevail  in  some 
quarters  concerning  the  relations  between  independent 
states. 

These  relations,  as  explained  by  many  publicists,  are 
based  upon  two  contradictory  principles.  Independent 
states  are  for  some  purposes  considered  as  persons  not 
Hving  in  society,  who  fight  or  agree.  When  so  consid- 
ered, their  relations  are  ''international."  They  are  also 
for  some  purposes  considered  as  social  units  and  as 
component  parts  of  the  society  of  nations.  When  so 
considered,  their  relations  are  under  a  ''law,"  which  is 
imposed  on  them  by  the  society  of  nations.  In  political 
thinking,  these  two  ideas  are  continually  attempted  to 
be  blended.  Jeremy  Bentham  in  1780  invented  the 
expression  "international  law,"  and  this  expression  has 
come  into  quite  general  though  not  universal  use.  We 
have  become  so  habituated  to  it  that  we  do  not  stop 


Limitation  of  Arbitral  Tribunals  251 

to  consider  that  it  is  meaningless.  Law  comes  from  a 
political  society  which  is  above  the  persons  who  are 
subject  to  the  law;  it  never  comes  from  ''between"  or 
'  'among' '  the  persons  who  are  subject  to  the  law.  There 
may  be  a  law  of  the  society  of  nations,  which  binds 
the  nations  as  members  of  the  society;  and  there  may 
be  a  law  of  a  group  of  nations  united  so  as  to  form  a 
particular  society  of  nations ;  but  there  can  be  no  other 
kind  of  "law"  which  is  of  any  effect  upon  the  nations. 
The  expression  "international  law"  is  as  unthinkable 
as  a  black  white. 

The  Constitution  uses  the  expression  "the  law  of 
nations"  instead  of  "international  law."  The  former 
expression  occurs  in  the  loth  clause  of  Article  I,  Section 
8,  by  which  Congress  is  given  power  to  "define  and 
punish   .    .    .   offenses  against  the  law  of  nations." 

The  vogue  which  the  expression  "international  law" 
has  had  is  doubtless  due  to  the  confusion  of  the  idea 
of  agreement  and  the  idea  of  law — the  fallacy  lying  in 
the  assumption  that  law  is  essentially  nothing  but 
agreement.  Recent  investigations  and  study  in  juris- 
prudence have  shown  the  true  connection  between  the 
two  ideas.  Law,  in  the  sense  of  jurisprudence,  is  a 
body  of  rules  of  action  or  relationship  formulated  by 
a  political  society,  which  the  society  enforces  upon  its 
members.  The  society  exists  by  agreement  and  its 
action  is  determined  by  the  agreement  of  those  who  have 
the  majority  of  power.  But  the  political  society  al- 
ways intervenes  between  the  agreement  and  the  law, — 
the  agreement  makes  the  political  society,  and  the 
political  society  recognizes  or  makes  the  law.  The 
moment  we  should  attempt  to  speak  of  interpersonal 
law,  the  absurdity  of  the  expression  "international  law" 
would  become  apparent ;  for  our  common  sense  and  ex- 
perience would  immediately  show  us  that  we  do  not 


252    The  American  Philosophy  of  Government 

obey  oiir  agreements,  and  that  we  do  obey  the  law 
which  the  political  society  of  which  we  are  members 
imposes  on  us — the  political  society  being  established, 
maintained  and  operated  by  our  agreements. 

If  we  dismiss  the  idea  of  * 'international  law,"  and 
take  as  the  basis  of  our  political  thinking  the  proposition 
that  the  only  law  which  can  bind  a  nation  is  that  which 
is  imposed  upon  it  by  a  political  society  of  nations,  of 
which  it  is  a  member,  the  difficulty  about  there  being 
legal  limitations  upon  tribunals  which  decide  disputes 
between  nations  begins  to  disappear.  A  logical  basis 
for  legal  limitations  upon  such  tribunals  is  established 
and  the  difficulty  which  remains  is,  to  define  the  legal 
limitations. 

A  particular  society  or  union  of  nations  may  be  or- 
ganized for  legislative  purposes,  or  for  executive  pur- 
poses, or  for  judicial  purposes,  or  for  all  of  them.  If 
two  or  more  nations  should  agree  to  establish  a  court 
for  the  settlement  of  disputes  between  them,  they 
would  be  united  in  a  judicial  union.  A  judicial  union 
would  imply  the  establishment  by  the  political  society 
composed  of  the  uniting  nations  of  a  common  federal 
law  emanating  from  the  union. 

It  would  be  possible,  therefore,  for  the  United  States, 
Great  Britain  and  France,  and  other  nations  which 
they  might  associate  with  them,  to  enter  into  a  judicial 
union  for  the  purpose  of  having  disputes  between  them 
settled  by  a  common  tribunal  appointed  by  them. 
Indeed,  there  may  be  a  question  whether  or  not  the 
legal  effect  of  the  pending  treaties,  if  they  are  ratified 
and  are  held  constitutional,  will  not  be  to  establish  a 
judicial  union  between  these  three  nations,  in  which  case 
the  arbitral  tribunal  would,  according  to  American  doc- 
trine, be  legally  limited  by  the  principles  of  the  supreme 
universal  law  and  by  the  constitution  and  laws  of  the 


Limitation  of  Arbitral  Tribunals  253 

union.  As  bearing  on  this  question,  the  provision  mak- 
ing the  arbitration  arrangement  permanent,  with  a 
reservation  of  the  right  of  secession,  may  be  important. 
This  provision,  as  it  appears  in  the  proposed  treaty 
with  Great  Britain,  reads  (Articles  VI  and  VII) : 

"This  treaty  shall  supersede  the  arbitration  treaty  con- 
cluded between  the  high  contracting  parties  on  April  4, 
1908.  .  .  .  The  present  treaty  shall  be  ratified  by  the 
President  of  the  United  States  of  America,  by  and  with  the 
advice  and  consent  of  the  Senate  thereof,  and  by  His 
Britannic  Majesty.  The  ratifications  shall  be  exchanged  at 
Washington  as  soon  as  possible,  and  the  treaty  shall  take 
effect  on  the  date  of  the  exchange  of  its  ratifications.  It 
shall  thereafter  remain  in  force  continuously  unless  and 
until  terminated  by  twenty-four  months'  written  notice 
given  by  either  high  contracting  party  to  the  other." 

If  the  effect  of  the  pending  treaties  is  to  establish 
a  judicial  union  of  three  nations  of  which  the  United 
States  is  to  be  a  member,  the  question  arises  whether 
such  a  union  can  constitutionally  be  formed  by  treaty. 
It  is  an  act  of  great  importance  and  solemnity  for  the 
United  States  to  enter  into  a  union  with  foreign  na- 
tions for  judicial  purposes.  Moreover,  the  Constitution 
(Article  IV,  sec.  3)  provides: 

"  New  States  may  be  admitted  by  the  Congress  into  this 
Union;  but  no  State  shall  be  formed  or  erected  within  the 
jurisdiction  of  any  other  State;  nor  any  State  be  formed  by 
the  junction  of  two  or  more  States,  or  parts  of  States,  with- 
out the  consent  of  the  Legislatures  of  the  States  concerned 
as  well  as  of  the  Congress." 

When  any  change  is  to  be  made  in  the  component 
parts  of  the  Union  which  exists  under  the  Constitution, 
or  in  the  composition  of  the  Union,  therefore.  Congress 


254   The  American  Philosophy  of  Government 

must  act.  Can  it  be  possible  that  when  it  is  a  question 
of  the  United  States  making  itself  a  component  part 
of  a  Union,  of  which  two  great  European  states  are 
to  be  the  other  members,  any  less  authority  than  the 
Congress  of  the  United  States  can  decide? 
The  Constitution  also  provides  (Article  I,  sec.  8) : 

"  The  Congress  shall  have  power  ...  to  declare  war 
...  to  raise  and  support  armies  ...  to  provide  and 
maintain  a  navy  ...  to  make  all  laws  which  shall  be 
necessary  for  carrying  into  execution  the  foregoing  powers." 

It  also  provides  (Article  II,  sec.  2) : 

"  The  President  .  .  .  shall  have  power,  by  and  with  the 
advice  and  consent  of  the  Senate,  to  make  treaties,  provided 
two-thirds  of  the  Senators  present  concur." 

A  treaty  is  an  agreement  with  a  foreign  power  regard- 
ing a  particular  dispute.  The  power  to  delegate  to 
a  tribunal  the  settlement  of  a  dispute  presupposes  the 
inability  of  the  President  and  Senate  to  make  a  treaty 
which  shall  itself  settle  the  dispute,  and  a  choice  by 
the  nation  between  a  settlement  of  the  dispute  by  war 
and  a  settlement  by  judicial  means.  It  seems  as  reason- 
able to  hold  that  the  Constitution  places  the  responsi- 
bility for  making  such  a  choice  on  the  Congress  as  an 
incident  to  the  war  power,  as  on  the  President  and 
Senate  as  an  incident  to  the  treaty-making  power.  The 
efficiency  of  judicial  settlement  of  international  dis- 
putes depends  upon  the  existence  of  a  public  sentiment 
in  favor  of  such  settlement;  it  can  never  be  made  cer- 
tain that  the  public  sentiment  is  in  favor  of  judicial 
settlement  either  in  a  particular  case  involving  questions 
of  great  public  interest  or  as  a  general  policy,  until  the 
House  of  Representatives,  which  speaks  for  the  whole 


Limitation  of  Arbitral  Tribiinals  255 

people  of  the  United  States,  and  the  President  and 
Senate,  have  declared  in  favor  of  this  method  of  settle- 
ment. The  doubt,  if  there  be  one,  whether  the  right 
to  make  this  choice  belongs  to  the  whole  Government 
or  to  a  part  of  it,  should,  it  would  seem,  be  resolved 
in  favor  of  the  whole  Government;  for  only  by  the 
action  of  the  whole  Government  can  it  be  certain  that 
in  cases  where  treaty  is  impossible  the  public  sentiment 
of  the  nation  is  in  favor  of  judicial  settlement  rather 
than  war.  It  would  be  consistent  not  only  with  the 
Constitution,  but  with  the  advanced  thought  of  the 
civilized  world,  if  treaties  providing  for  general  arbitra- 
tion of  international  disputes,  or  for  the  arbitration  of 
particular  disputes  which  are  of  public  interest,  should, 
after  having  been  formulated  and  ratified  by  the  Presi- 
dent and  Senate,  be  finally  ratified  and  sanctioned  by  an 
Act  of  Congress  passed  after  the  existence  of  a  public 
sentiment  in  favor  of  the  treaty  had  been  ascertained. 

It  seems  to  have  been  the  original  understanding  on 
the  part  of  the  British  Government  that  any  arrange- 
ment for  general  arbitration  made  by  Great  Britain 
with  the  United  States  would  be  in  the  nature  of  a 
judicial  union  or  an  exercise  of  the  war-and-peace 
powers,  requiring  the  sanction  of  Parliament,  acting 
on  a  special  mandate  from  the  people  of  Great  Britain. 
On  March  13,  191 1,  Sir  Edward  Grey,  Secretary  of 
State  for  Foreign  Affairs,  speaking  in  the  House  of 
Commons  on  a  motion  to  reduce  the  Army  and  Navy 
estimates,  referred  to  the  suggestion  made  by  President 
Taft  that  the  United  States  should  enter  into  agree- 
ments "with  some  other  nations  to  abide  by  the  adju- 
dication of  International  Arbitration  Courts  in  every 
issue  which  cannot  be  settled  by  this  nation,  no  matter 
what  it  involves,  whether  honor,  territory,  or  money" 
for  the  purpose  of  "demonstrating  that  it  is  possible 


256  The  American  Philosophy  of  Government 

for  two  nations  at  least  to  establish  between  them  the 
same  system  which  through  the  process  of  law  has 
existed  between  two  individuals  under  government." 

(These  quotations  and  that  immediately  following 
are  from  the  official  Parliamentary  Debates.  (The 
Parliamentary  Debates,  Official  Report,  5th  Series, 
vol.  22,  pp.  1989-1991.)  The  words  of  President 
Taft  quoted  by  Sir  Edward  Grey  were  delivered  be- 
fore the  American  Society  for  Judicial  Settlement  of 
International  Disputes  on  December  17,  1910.  In 
the  official  report  of  the  Proceedings  of  that  Society 
(p.  353),  President  Taft's  words  are  thus  given: 

*'If  now  we  can  negotiate  and  put  through  a  posi- 
tive agreement  with  some  great  nation  to  abide  the 
adjudication  of  an  international  arbitral  court  in 
every  issue  which  cannot  be  settled  by  negotiation, 
no  matter  what  it  involves,  whether  honor,  territory, 
or  money,  we  shall  have  made  a  long  step  forward 
by  demonstrating  that  it  is  possible  for  two  nations 
at  least  to  establish  as  between  them  the  same  system 
of  due  process  of  law  that  exists  between  individuals 
under  a  government.")  In  that  speech,  Sir  Edward 
Grey  said: 

"These  are  bold  and  courageous  words.  We  have  no 
proposal  before  us,  and  unless  public  opinion  will  rise  to 
the  level  of  discussing  a  proposal  of  that  kind,  not  with 
reference  to  charges  of  inconsistency,  not  with  reference  to 
what  one  nation  or  the  other  is  going  to  do  by  some  agree- 
ment, but  unless  they  rise  to  the  height  of  discussing  as  a 
great  movement  in  the  opinion  of  the  world,  it  cannot  be 
carried  out.  But  supposing  it  took  place,  and  two  of  the 
greatest  nations  in  the  world  were  to  make  it  clear  to  the 
world  by  agreement  such  as  that,  that  in  no  circumstances 
were  they  going  to  war  again,  I  venture  to  say  that  the 
effect  on  the  world  at  large  of  the  example  would  be  one 


Limitation  of  Arbitral  Tribunals  257 

which  would  be  bound  to  have  beneficial  consequences. 
.  .  .  Entering  into  an  agreement  of  that  kind  there  would 
be  great  risks  entailed.  If  you  agree  to  refer  everything  to 
arbitration  as  the  President  of  the  United  States  has  said, 
you  must  be  prepared  to  take  certain  risks.  You  must  be 
prepared  for  some  sacrifices  of  national  pride.  An  agree- 
ment of  that  kind  so  sweeping  as  that,  if  proposed  to  us, 
we  should  be  delighted  to  have  such  a  proposal,  but  I 
should  feel  it  was  something  so  momentous  and  so  far- 
reaching  in  its  possible  consequences  that  it  would  require 
not  only  the  signature  of  both  Governments,  but  the  delib- 
erate and  deciding  sanction  of  Parliament.  That,  I  believe, 
would  be  obtained.  I  know  that  to  bring  about  changes 
of  this  kind  public  opinion  has  to  rise  to  a  high  plane, 
higher  than  it  can  rise  in  ordinary  times,  and  higher  than 
some  hon.  Members  opposite,  I  imagine,  think  it  can 
ever  rise.  In  ordinary  times  that  may  be  true,  but  the  times 
are  not  ordinary  with  this  expenditure,  and  they  will 
become  still  less  ordinary  as  this  expenditure  increases. 
...  I  think  it  is  not  impossible,  though  I  admit  that  in 
a  case  of  such  an  enormous  change  progress  may  be  slow, 
that  the  public  opinion  of  the  world  at  large  may  insist,  if 
it  is  fortunate  enough  to  find  leaders  who  have  the  courage — 
the  sort  of  courage  which  has  been  shown  in  the  utterances 
I  have  quoted  in  this  House — ^upon  finding  relief  in  this 
direction.  Some  armies  and  navies  would  remain,  no  doubt, 
but  they  would  remain  then  not  in  rivalry  with  each  other, 
but  as  the  police  of  the  world.  Some  hon.  Members  say 
we  should  not  live  to  see  the  day.  I  dare  say  we  should 
not,  .  .  .  but  I  think  we  shall  live  to  see  some  progress 
made." 

Any  arrangement  with  Great  Britain  which  requires 
''the  deliberate  and  deciding  sanction  of  Parliament" 
registering  an  ascertained  state  of  British  public  opinion, 
must  also  require  the  deliberate  and  deciding  sanction 
of  the  Congress  of  the  United  States,  registering  an 
ascertained  state  of  public  opinion  in  this  country. 
17 


258    The  American  Philosophy  of  Government 

Under  the  Constitutional  Law  of  France,  also,  it 
seems  that  it  may  be  reasonably  held  that  a  treaty 
establishing  a  system  of  arbitration  between  France  and 
other  nations  requires  the  sanction  of  the  French  Par- 
liament. The  Constitutional  Law  of  France  on  the 
Relations  of  the  Public  Powers,  enacted  July  16,  1875, 
(Article  8)  provides: 

"  The  President  of  the  Republic  shall  negotiate  and  ratify 
treaties.  He  shall  give  information  regarding  them  to  the 
Chambers  as  soon  as  the  interests  and  safety  of  the  State 
permit. 

"  Treaties  of  peace  and  of  commerce,  treaties  which  involve 
the  finances  of  the  State,  those  relating  to  the  person  and 
property  of  French  citizens  in  foreign  countries,  shall  be 
ratified  only  after  having  been  voted  by  the  two  Chambers. 

"  No  cession,  exchange  or  annexation  of  territory  shall  take 
place  except  by  virtue  of  a  law." 

A  treaty  purporting  to  establish  a  permanent  system 
of  general  arbitration  with  another  nation  would,  it 
would  seem,  involve  all  the  subjects  mentioned  in  this 
law,  and  would  hence  require  the  concurrent  action  of 
the  President  of  the  French  Republic  and  the  two  Cham- 
bers— that  is,  in  effect,  of  the  French  Parliament. 

Nor  does  it  seem  that  there  is  any  less  need  of  delib- 
erate and  solemn  action  by  the  Legislatures  of  the  con- 
tracting parties  because  the  proposed  treaties,  instead 
of  covering  all  disputes,  cover  all  "justiciable"  disputes, 
especially  when  the  contracting  nations  substantially 
renounce  their  individual  right  to  place  their  own  con- 
struction on  the  word  ''justiciable."  The  principle  laid 
down  by  Sir  Edward  Grey  seems  clearly  to  apply  to 
the  pending  treaties,  and  to  require  "the  deliberate  and 
deciding  sanction"  of  the  Legislatures  of  the  nations 
which  enter  into  the  judicial  union,  acting  upon  a  spe- 


Limitation  of  Arbitral  Tribunals  259 

cial  mandate  from  the  people  of  each  of  the  nations, 
after  the  meaning  and  effect  of  the  treaties  have  been 
fully  ascertained  and  made  clear  to  them. 

It  is  the  practice  of  civilized  nations  that  the  question 
whether  a  nation  shall  form  a  union  with  other  nations 
shall  be  settled  either  by  the  Legislature  or  by  a  Con- 
stitutional Convention.  It  seems  clear  that  no  part  of 
our  Government,  except  the  Congress,  can  possibly 
have  this  power,  as  the  organ  of  the  nation  for  this 
purpose,  under  the  Constitution.  If  Congress  has  not 
this  power,  such  a  union  could  be  effected  only  by 
amendment  of  the  Constitution. 

But,  assuming  the  constitutional  power  of  Congress 
to  bind  the  nation  in  a  judicial  union  with  other  nations, 
such  a  course  seems  to  be  contrary  to  American  policy, 
inexpedient  and  unnecessary. 

President  Washington's  Farewell  Address  applies 
to-day  with  the  same  force  as  in  1796.  The  danger  of 
losing  our  national  heritage  of  political  principle  and 
our  national  honor  and  independence  by  political  union 
or  permanent  alliance  with  foreign  nations — especially 
with  those  whose  fundamental  ideas  are  different  from 
our  own, — is  the  same  now  as  it  was  then.  It  is  true 
now,  as  it  was  then,  that  "Europe  has  a  set  of  primary 
interests  which  to  us  have  none  or  a  very  remote 
relation."  The  European  states  still  live  unsocially, 
and  their  relations  are  governed  by  the  principle  of 
military  strategy  known  as  "the  balance  of  power." 
Our  Fundamental  Constitution — the  preamble  of  the 
Declaration  of  Independence — is  regarded  by  European 
statesmen  as  meaningless.  The  state  is  still  assumed 
by  European  publicists  to  be  the  source  of  all  law  and 
hence  not  subject  to  law.  The  individual  has  no  rights 
against  the  Parliament,  but  only  such  privileges  and 
immunities  as  the  Parliament  may  grant  to  him.    jWe 


26o   The  American  Philosophy  of  Government 

can  neither  prove  or  disprove  our  doctrine ;  nor  can  the 
Europeans  prove  or  disprove  theirs.  It  is  a  matter  of 
accepting  or  declining  to  accept  as  * 'self-evident"  cer- 
tain propositions  which  can  neither  be  proved  nor 
disproved.  There  must  be  a  conversion  of  the  Euro- 
peans to  the  American  doctrine,  or  a  conversion  of  the 
Americans  to  the  European  doctrine.  Between  the 
doctrine  of  legally  limited  power  and  that  of  legally 
unlimited  power  there  is  no  half-way  house.  A  political 
union  for  judicial  purposes  between  a  nation  which 
regards  all  governmental  power  as  legally  limited  and 
a  nation  which  holds  that  a  part  of  the  government  is 
legally  unlimited,  is  clearly  contrary  to  American  policy 
and  has  a  tendency  to  imperil  and  ultimately  to  over- 
throw American  institutions.  It  is  still  clearly  our 
true  policy,  as  it  was  in  Washington's  day,  "to  steer 
clear  of  permanent  alliances  with  any  portion  of  the 
foreign  world,"  and  to  regard  as  our  friends  and  per- 
manent alHes  all  the  nations  of  the  world ;  dealing  with 
them,  however,  on  such  terms  that  we  shall  not  sacrifice 
or  imperil  the  fundamental  doctrine  of  legally  limited 
governmental  power  for  which  this  nation  stands,  and 
which  we  believe  to  be  essential  to  peace  and  justice. 

The  formation  of  a  judicial  union  with  particular 
nations  is  thus  seen  to  be  contrary  to  American  policy. 
It  seems  clearly  also  to  be  inexpedient.  Judicial  unions 
of  particular  nations  are  likely  to  convert  themselves 
into  "Holy  AlHances."  They  tend  to  estabUsh  a  law 
for  the  particular  union  which  is  inconsistent  with  the 
general  juridical  sentiment  of  mankind;  to  become  self- 
righteous  ;  and  to  attempt  to  force  their  ideas  of  law  and 
political  doctrine  upon  the  rest  of  the  world.  If  the 
United  States,  Great  Britain  and  France  were  to  enter 
into  a  judicial  union,  could  we  reasonably  blame  any 
outsider  nation  which  should  declare  its  own  "Monroe 


Limitation  of  Arbitral  Tribtmals  261 

Doctrine"  in  order  to  protect  its  legal  and  political 
ideas  from  invasion  by  the  union?  We  think  that  the 
American  system  deserves  to  be  protected,  and  we  are 
determined  to  protect  it,  not  only  in  our  own  interests 
but  in  the  interests  of  the  world  at  large.  But  the 
strength  of  our  position  lies  in  the  doctrine  which  we 
are  protecting  and  in  our  wholly  defensive  attitude. 
If  we  form  a  judicial  union  with  nations  which  do  not 
hold  the  political  principles  which  the  Monroe  Doctrine 
protects,  we  may  well  be  charged,  by  outsider  nations, 
with  having  abandoned  our  fundamental  principles, 
our  defensive  attitude,  and  the  Monroe  Doctrine  itself. 
Moreover,  we  may  well  be  considered  as  having  formed 
a  **Holy  Alliance"  with  these  nations  to  propagate  such 
a  faith  in  legal  and  political  matters  as  the  whole 
Alliance  may  decide  to  be  suitable  for  itself  and  the 
rest  of  the  world  to  hold.  Thus  a  particular  union  for 
judicial  purposes  might  lead  to  jealousy  and  war, 
instead  of  to  peace. 

A  particular  union  is  thus  seen  to  be  inexpedient,  as 
well  as  contrary  to  American  policy.  It  appears  also 
that  it  is  unnecessary,  since  there  may  be  a  more  simple 
and  practicable  road  to  the  arbitration  or  judicial  set- 
tlement of  disputes  between  nations  by  legally  limited 
tribunals, — which,  it  appears,  ought  to  be  the  goal  of  our 
efforts.  There  is  one  union  or  society  of  which  any  na- 
tion may  be  a  member,  without  creating  any  jealousy  or 
imperilling  its  fundamental  legal  and  political  doctrines. 
This  is  the  union  or  society  of  all  the  nations  and  peoples 
of  the  world,  which  has  already  received  the  name  of 
"the  society  of  nations."  Scholars  already  recognize 
the  existence  of  this  society  and  are  beginning  to  regard 
that  which  has  been  called  ''international  law"  as  the 
law  of  the  society  of  nations.  To  make  this  society  a 
political  fact  and  a  part  of  practical,  every-day  politics. 


262   The  American  Philosophy  of  Government 

nothing  is  required  except  that  the  nations  should 
recognize  the  existence  of  this  political  society  and  their 
membership  in  it.  They  will  then  be  bound  by  the 
customary  law  of  the  society,  as  it  is  now  formulated 
and  as  it  may  hereafter  be  formulated.  For  the  govern- 
ment of  political  societies  under  customary  law,  courts 
are  the  only  necessary  organs.  They  ascertain  custom, 
determine  its  reasonableness,  and  by  their  adoption  and 
application  of  reasonable  custom  authenticate  it  as  a 
part  of  the  customary  law  of  the  society.  Such  courts 
are  legally  limited  by  the  principles  of  the  supreme 
universal  law,  by  the  existing  unwritten  constitution 
and  customary  law  of  the  society,  and  by  all  customary 
law  which,  under  these  limitations,  they  assist  in  formu- 
lating. The  customary  law,  in  the  case  of  the  society 
of  nations,  is  to  all  intents  and  purposes  a  federal  law 
of  the  society  of  nations,  since  it  relates  only  to  those 
matters  which  are  common  to  all  the  nations  or  are 
beyond  the  competency  of  any  one.  That  which  we 
call  "international  law"  is  in  fact  the  federal  customary 
law  of  the  society  of  nations,  formulated  without  a 
definite  legislature  and  enforced  without  a  definite 
executive.  For  the  proper  development  of  customary 
law,  courts  and  tribunals  with  advisory  powers  seem 
likely  to  be  more  effective  than  those  whose  decisions 
purport  to  be  enforced  by  physical  or  moral  compulsion ; 
for  customary  law  must  ever  rest  largely  in  opinion,  and 
the  strength  of  customary  law  lies  in  its  power  to  induce 
a  voluntary  obedience.  Moreover,  nations  which  hold 
to  the  doctrine  of  legally  unHmited  governmental  power 
could  reasonably  accept  advisory  arbitration  by  tri- 
bunals recognizing  themselves  as  legally  limited,  since 
it  would  not  be  inconsistent  with  their  doctrine  to  take 
advice  concerning  the  settlement  of  their  disputes  with 
other  nations. 


Limitation  of  Arbitral  Tribunals  263 

For  the  purpose  of  bringing  about  the  judicial  set- 
tlement of  disputes  between  nations  by  legally  limited 
tribunals,  any  one  nation  may  act  alone  in  its  recogni- 
tion of  the  society  of  nations  and  its  membership  there- 
in; or  several  may  act  simultaneously.  Considering  the 
fact  that  this  nation  stands  for  legal  limitations  upon 
all  governmental  power,  it  seems  that  it  might  properly 
take  the  lead,  leaving  the  nations  which  do  not  accept 
this  doctrine  to  take  such  action  as  they  deem  proper. 
This  might  require  that  this  nation  should  offer  to 
submit  to  advisory  arbitration  all  disputes  of  every  kind 
with  any  nation,  on  the  understanding  that  the  arbi- 
trators were  to  regard  themselves  as  legally  limited  by 
the  principle  of  universal  law  that  no  person  is  to  be 
deprived  of  his  life,  liberty  or  property  by  any  political 
society  or  government  without  due  process  of  law,  and, 
subject  to  this  law,  by  all  the  customary  organic  and 
regulative  law  of  the  society  of  nations,  as  the  same  is 
now  formulated  under  the  name  of  "international  law" 
and  as  it  may  be  formulated  by  the  authentication  of 
reasonable  customs — the  existence  of  customs  and  their 
reasonableness  being  determined  by  having  regard  to 
and  respect  for  all  existing  accepted  customs,  the  prin- 
ciples of  all  civilized  systems  of  laws,  and  the  precedents 
under  these  systems.  Such  an  offer  might  be  made  by 
a  joint  resolution  of  both  Houses  of  Congress  and  a 
Presidential  announcement  contained  in  a  Presidential 
Message,  in  substantially  the  same  way  as  the  Monroe 
Doctrine  was  promulgated.  The  present  Hague  Tri- 
bunal and  the  Convention  for  the  Pacific  Settlement 
of  International  Disputes  could  be  utilized,  and  thus 
the  necessity  of  entering  into  treaties  could  be  avoided, 
unless  it  should  be  considered  necessary  under  the 
Constitution  that  the  Senate  should  supervise  the 
''special  agreement"  in  each  case. 


264   The  American  Philosophy  of  Government 

Such  an  offer  by  the  United  States  might  well  consti- 
tute a  basis  for  the  consideration  by  the  next  Hague 
Conference  of  the  question  of  legal  limitation  of  arbitral 
tribunals;  for  it  seems  clear  that  the  success  or  failure 
of  arbitration  of  the  disputes  of  nations  depends  on 
whether  or  not  the  arbitral  tribunals  act  under  legal 
limitations.  Only  by  making  the  society  of  nations  a 
fact  of  practical  politics,  it  would  seem,  can  such  legal 
limitations  exist.  Leadership  by  the  United  States  in 
the  movement  to  recognize  and  establish  the  society  of 
nations  and  to  institute  a  general  practice  of  advisory 
arbitration  under  the  reasonable  customary  law  of  that 
society,  would  be  consistent  with  the  policy  of  self- 
regarding  altruism  which  Washington  advised  when  in 
his  Farewell  Address  he  said : 

"Harmony,  and  a  liberal  intercourse  with  all  nations, 
are  recommended  by  policy,  humanity,  and  interest." 

If,  however,  this  course  should  seem  presumptuous 
on  the  part  of  this  nation,  or  likely  to  be  interpreted  as 
an  attempt  to  force  the  American  system  on  the  rest 
of  the  world,  two  other  courses  are  open — either  to 
adopt  the  pending  treaties  with  the  clause  omitted 
which  attempts  to  delegate  the  power  of  decision  re- 
garding justiciability  to  a  Joint  High  Commission,  as 
the  majority  of  the  Senate  Committee  on  Foreign 
Relations  propose, — adding,  out  of  caution,  the  reserva- 
tion proposed  by  the  minority  of  the  Committee,  with- 
drawing from  arbitration  ''any  question  which  depends 
upon  or  involves  the  traditional  attitude  of  the  United 
States  concerning  American  questions,  or  other  purely 
governmental  policy";  or  to  renew  the  existing  treaties 
until  a  date  some  time  after  the  close  of  the  next  Hague 
Conference.  The  latter  course  seems  the  safer  one. 
The  pending  treaties,  even  if  amended  so  as  to  reserve 
to  the  President  and  Senate  power  to  withdraw  cases 


Limitation  of  Arbitral  Tribunals  265 

from  arbitration  as  non-justiciable,  leave  it  uncertain 
what  cases  may  be  withdrawn.  Moreover,  they  may 
involve  this  nation  indirectly  in  what  will  be  in  fact  a 
judicial  union  with  particular  nations.  They  may  also 
commit  us  to  the  European  system  of  legally  unlimited 
governmental  power,  for  they  imply  that  the  arbitrators 
may  decide  cases  on  their  views  of  "law  or  equity" 
without  first  applying  the  fundamental  principles  se- 
curing the  rights  of  the  individual  and  without  regard 
to  those  great  organic  national  and  international  poli- 
cies and  dispositions  by  which  the  international  world 
is  held  together,  and  which  form  its  unwritten  Consti- 
tution. The  existing  treaties,  on  the  other  hand,  leave 
it  open  to  this  nation  to  withdraw  from  arbitration  any 
disputes  which  involve  these  fundamental  principles, 
or  which,  if  decided  in  a  particular  manner,  might 
endanger  these  organic  policies  and  dispositions.  They 
thus  enable  us  to  protect  our  system,  our  national 
policies  and  the  organic  policies  and  dispositions  of  the 
whole  world. 

It  seems  probable  that  the  question  of  limitation  of 
arbitral  tribunals  will  be  open  for  discussion  at  the  next 
Hague  Conference,  even  if  this  nation  should  hold  to 
the  existing  treaties.  There  seems  to  be  a  general  desire 
among  the  nations  that  what  is  called  the  "codification 
of  international  law"  shall  be  considered  by  the  Con- 
ference. This  will,  it  would  seem,  necessarily  involve 
the  question  of  legal  limitation  of  states,  governments, 
and  arbitral  tribunals.  As  a  result  of  these  discussions, 
it  will  be  made  clearer  to  us  what  ought  to  be  our  perma- 
nent policy  in  the  matter  of  judicial  settlement  of  inter- 
national disputes.  The  great  danger  to  the  cause  of 
judicial  settlement  appears  to  lie  in  the  adoption  by  the 
leading  nations  of  an  insufficiently  considered  policy 
which  will  subject  them  to  legally  unlimited  power  and 


266   The  American  Philosophy  of  Government 

will  result  in  war  rather  than  in  peace,  thus  bringing 
judicial  settlement  into  disrepute.  The  existing  treaties 
have  been  successful.  The  only  reason  urged  for  chang- 
ing them  is,  that  they  do  not  go  far  enough  to  have  an 
apparent  effect  in  reducing  war  expenditure,  and  in 
preventing  the  loss  of  productive  energy  caused  by  war 
and  the  preparation  for  war.  They  are  supported  by 
the  general  public  sentiment.  Though  they  have  not 
been  ratified  by  the  whole  Government  of  each  of  the 
contracting  nations,  they  can,  if  necessary,  be  so  ratified 
without  delay.  The  question  of  their  constitutionality, 
so  far  as  this  nation  is  concerned,  is  not  likely  to  be 
raised,  and  the  reservation  of  broad  discretionary  power 
to  withdraw  cases  from  arbitration  goes  far  to  remove 
both  constitutional  objections  and  objections  based  on 
general  principles.  They  afford  us  a  safe  ground  on 
which  to  rest  while  we  are  considering  what  should  be 
the  next  step.  It  seems  that  it  will  be  wiser,  before 
moving  from  oiir  present  secure  position,  to  take  time 
to  consider  our  next  step,  waiting  until  we  can  have  the 
benefit  of  the  discussion  and  action  of  the  next  Hague 
Conference,  so  that  when  next  we  move,  we  may  do  so 
with  confidence  and  unanimity,  in  the  conviction  that 
we  are  moving  in  the  right  direction. 


COOPERATION  VERSUS  COMPULSION  IN 

THE  ORGANIZATION  OF  THE 

SOCIETY  OF  NATIONS 


^ 


267 


COOPERATION  VERSUS  COMPULSION  IN 
THE  ORGANIZATION  OF  THE  SO- 
CIETY OF  NATIONS 

Reprinted  from  the  Report  of  the  Lake  Mohonk  Conference  on  In- 
ternational Arbitration.     Delivered  May  i8th,  191 6. 

DURING  the  past  two  years,  perhaps  as  a  result  of 
the  war,  a  plan  has  been  seriously  advanced  and 
widely  supported,  for  organizing  a  League  of 
Nations  on  a  compulsive  basis;  and  within  the  same 
period,  a  plan  of  wider  scope  has  been  brought  forward 
with  equal  seriousness  and  with  a  considerable  follow- 
ing, for  organizing  the  whole  society  of  nations  on  a 
compulsive  basis. 

One  plan  is  that  of  the  League  to  Enforce  Peace. 
The  other  is  that  of  the  Fabian  Society  of  London. 
The  latter  is  a  proposal  for  organizing  all  the  na- 
tions compulsively  under  what  is  called  a  ''superna- 
tional  authority."  This  "supernational  authority"  is 
to  have  conciliative,  judicial,  legislative,  and  executive 
functions  and  organs,  and  is  to  enforce  its  decisions  by 
means  of  an  international  police  and  by  economic  force. 
The  plan  recognizes  and  provides  for  large  district 
unions  of  nations  after  the  manner  of  the  Pan-American 
Union — each  district  union  cooperating  with  the  others 
to  uphold  the  society  of  nations  and  the  supernational 
authority.  The  eight  great  powers  are  to  occupy  a 
special  position  in  the  whole  organization,  evidently  as 
an  Inner  League  to  Enforce  Peace. 

Such  movements,  so  elaborated  and  so  supported, 

269 


270  The  American  Philosophy  of  Government 

challenge  our  attention  and  consideration.  It  is  our 
duty  to  examine  them,  and  either  to  support  them  or 
to  state  our  reasons  for  opposing  them  when  suitable 
opportunity  is  given.  For  myself,  I  wish  to  say  that 
my  objections  are  not  based  on  any  notion  or  belief 
that  the  use  of  force  is  not  justifiable  in  any  case. 
The  experience  of  mankind  has,  I  believe,  abundantly 
proved  that  in  some  kinds  of  organization,  the  use  of 
force  is  necessary,  and  therefore  justifiable.  Whether 
force  ought  to  be  used  in  a  particular  political  organi- 
zation depends  upon  whether  it  is  possible  to  use  it 
in  that  political  society  so  as  to  effect  the  object  of 
that  society.  In  the  society  of  nations,  or  in  any 
League  of  nations,  it  seems  to  me  that  the  use  of  force 
is  impracticable,  and  therefore  unjustifiable.  I  shall 
therefore  attempt  to  base  my  objections  on  accepted 
principles  of  political  science,  and  on  considerations  of 
practical  politics. 

The  plan  of  constitution  of  the  proposed  League  to  En- 
force Peace  consists  of  a  contracting  clause  and  four 
articles.  By  the  contracting  clause,  the  United  States 
and  some  other  nations — evidently  less  than  all — are  to 
constitute  themselves  into  a  political  union,  described  as 
a  "League,"  the  members  binding  themselves  to  the  ob- 
servance of  the  four  articles.  No  object  is  stated,  no 
fundamental  principles  of  individual  and  national  right 
and  duty  are  declared,  no  constitutional  prohibitions 
designed  to  safeguard  these  fundamental  principles  are 
to  be  accepted  by  the  signatory  nations,  no  legal  limita- 
tions of  any  kind  upon  the  processes  and  organs  pro- 
vided for  in  the  four  articles  are  established. 

The  first  article  obligates  the  signatories  to  use  the 
process  of  judicial  settlement  as  respects  all  "justifiable'* 
questions,  subject  only  to  the  limitations  of  treaties — 
that  is  to  say,  in  conformity  with  particular  or  general 


Cooperation  versus  Compulsion  271 

agreements — and  provides  for  the  institution  of  an 
organ,  or  organs,  of  adjudication  called  a  ''judicial 
tribunal." 

The  second  article  obligates  the  signatories  to  use  the 
process  of  conciliation  as  respects  all  other  questions 
arising  between  them  not  settled  by  negotiation,  and 
provides  for  the  institution  of  an  organ,  or  organs,  of 
conciliation  called  "a  council  of  conciliation." 

The  third  article  obligates  the  signatories  jointly  to 
use  forthwith  both  their  economic  and  military  forces 
against  any  one  of  their  number  that  goes  to  war,  or 
commits  acts  of  hostility,  against  another  of  the  signa- 
tories before  any  question  arising  shall  be  submitted  as 
provided  in  the  foregoing  two  articles,  but  fails  to  in- 
stitute any  organ  to  determine,  direct,  and  apply  the 
force. 

The  fourth  article  provides  for  the  process  of  formu- 
lation and  codification  of  rules  of  international  law, 
which  formulations  and  codifications,  unless  some  sig- 
natory shall  signify  its  dissent  within  a  stated  period, 
shall  thereafter  govern  the  decisions  of  the  organ  or 
organs  described  in  the  first  article  as  "a  judicial  tri- 
bunal." The  fourth  article  also  obligates  the  signa- 
tories to  institute  an  organ  or  organs  of  formulation 
and  codification  of  the  rules  of  international  law, 
described  as  "conferences." 

Such  being  the  provisions  of  the  proposed  constitu- 
tion of  the  League  of  Nations  to  Enforce  Peace,  let  us 
consider  them  briefly. 

In  the  first  place,  it  must  be  recognized  that  no  criti- 
cism is  made  or  intended  of  the  first,  second,  and  fourth 
articles  of  the  constitution  taken  by  themselves.  These 
articles  provide  for  a  general  treaty  binding  the  signa- 
tory nations  to  use  processes  and  establish  organs  of 
adjudication,  conciliation,  and  law-formulation.    These 


272  The  American  Philosophy  of  Government 

processes  and  these  organs  are,  as  pointed  out  by  Dr. 
John  Basse tt  Moore,  in  his  learned  and  inspiring  address 
as  the  presiding  officer  of  the  last  Mohonk  Conference, 
the  normal  processes  and  organs  of  the  cooperative  and 
non-compulsive  form  of  organization.  This  Conference 
incorporated  in  its  platform  of  last  year  resolutions 
advocating  the  general  application  of  these  processes 
and  the  general  establishment  of  these  organs  between 
nations.  The  League  to  Enforce  Peace  proposes  to 
take  the  processes  and  organs  which  are  peculiar  to 
voluntary  and  cooperative  organization  and  make  them 
compulsive.  The  normal  processes  and  organs  of  the 
compulsive  form  of  organization  are,  of  course,  the 
legislative,  the  judicial,  and  the  executive.  The  plan 
of  the  League  to  Enforce  Peace  is  therefore  an  attempt 
to  confuse  two  antithetical  forms  of  organization. 

The  plan  assumes  that  a  league  of  nations  could 
compel  any  member  nation  to  submission  in  a  manner 
comparable  with  that  by  which  a  nation  compels  its 
citizens  and  societies  to  submission.  A  war  waged  by 
a  coalition  of  nations  having  five  hundred  millions  of 
population  against  a  nation  having  a  hundred  millions 
would  doubtless  not  be  able  to  effect  the  submission  of 
the  nation.  It  would,  however,  mean  practically  uni- 
versal war,  followed  by  universal  bankruptcy  and 
famine.  In  proposing  a  compulsion  of  nations,  there- 
fore, the  plan  seems  to  propose  an  impossibility  in  fact. 

The  constitution  of  the  proposed  League  may  be 
construed  as  providing  that  the  League  shall  compel 
its  members  to  submit  to  having  their  disputes  with 
the  members  submitted  to  adjudication  or  conciliation 
or  as  providing  that  the  League  shall  punish  or  abolish 
any  nation  refusing  to  submit  to  adjudication  or  con- 
ciliation. If  it  is  to  be  construed  as  proposing  to  compel 
submission  to  conciliation,  it  proposes  an  impossibility 


Cooperation  versus  Compulsion  273 

in  the  nature  of  things.  Such  use  of  force  is  negated  by 
the  definition  of  conciliation.  The  word  "conciliation," 
is  the  one  selected  by  the  English-speaking  part  of  the 
world  to  express  a  wholly  voluntary  and  persuasive 
process  by  which  a  person  brings  the  influence  of  re- 
ligious belief,  of  experience,  and  of  reason  to  bear  upon 
the  minds  and  consciences  of  other  persons  who  are 
involved  in  a  disagreement  which  is  becoming,  or  has 
become,  a  dispute,  and  which  may  lead  to  violence. 
The  sole  purpose  and  end  of  conciliation  is  to  induce 
the  disagreeing  or  disputing  parties  voluntarily  to  agree. 
That  force  may  be  used  in  aid  of  conciliation  is  doubt- 
less true,  but  the  plan  does  not  so  limit  the  use  of  force. 
It  provides  for  conquering  a  nation  and  forcing  it  to 
submit  to  the  League's  will  when  it  has  refused  to 
submit  to  adjudication  or  conciliation.  This  is  a  com- 
pulsion placing  a  nation  at  the  mercy  of  the  other  mem- 
bers of  the  League  whenever  they,  after  condemning  it 
as  a  violator  of  the  League's  constitution,  succeed  in 
conquering  it.  Such  provisions  for  conquering  and 
punishing,  or  perhaps  dividing  and  abolishing  nations, 
are  abhorrent  to  modern  ideas. 

The  plan  contains  no  provision  for  an  executive  to 
wield  the  force  of  the  union,  nor  for  a  permanent  legis- 
lature to  determine  how  the  force  is  to  be  used.  The 
force  used  is  to  be  joint  force — that  is,  joint  and  several 
force — not  united  force.  The  experience  of  mankind 
in  the  use  of  the  compulsive  form  of  organization  warns 
us  of  the  dangers  of  the  use  of  any  force  in  any  organized 
society,  or  union  of  organized  societies,  except  the 
united  force  of  the  society  in  aid  of  the  powers  which 
are  conferred  on  it  by  the  members  and  which  are  con- 
stitutionally and  legally  limited  by  a  fundamental  con- 
stitution. When  the  law  and  will  of  the  society  is 
constitutionally  formulated,  declared,  and  applied  by  its 
18 


274  1"^^  American  Philosophy  of  Government 

legislative,  judicial,  and  executive  organs,  the  executive, 
when  necessary,  wields  the  force  of  the  society  so  as  to 
make  its  law  effective  in  determining  the  actions  and 
relationships  of  the  members  in  their  own  and  the  com- 
mon interest.  An  organized  society  or  union  wielding 
force  without  a  definite  legislative  and  executive  organ 
to  direct  the  force  in  execution  of  the  legally  limited 
judgment  and  will  of  the  society,  is  a  political  anomaly 
of  the  kind  aptly  described  by  Jefferson  as  an  "entangl- 
ing alliance."  It  is  an  alliance,  because  it  is  an  imper- 
fect and  defective  union;  it  is  entangling  because  it 
involves  the  members  of  the  imperfect  and  defective 
union  in  a  tangled  mass  of  relationships  and  activities, 
for  the  disentanglement  of  which  force  is  used  without 
adequate  determination,  direction,  and  limitation,  and 
without  those  arrangements  for  solving  disagreements 
before  they  reach  the  acute  stage  of  dispute,  which  is 
essential  to  the  orderly,  economical,  and  efficient  use 
of  force. 

As  illustrating  the  possibilities  of  entanglement,  it 
is  only  necessary  to  consider  some  of  the  questions 
which  each  of  the  signatory  nations  in  the  proposed 
League  would  have  to  decide  for  itself  in  order  that 
their  economic  and  military  forces  might  be  used  joint- 
ly. What  "question"  in  a  given  case,  is  to  be  "sub- 
mitted," of  all  the  various  questions  which  are  possible 
to  be  regarded  as  the  questions  in  dispute  when  great 
nations  or  great  groups  of  nations  stand  threatening 
each  other  and  on  the  verge  of  war?  What  is  a  "sub- 
mission" of  a  dispute  to  adjudication,  or  to  conciliation? 
What  is  an  act  of  hostility?  What  is  economic  force? 
How  shall  it  be  used  in  a  given  case?  What  shall  hap- 
pen if  both  or  all  the  nations  between  whom  questions 
arise  insist  that  they  will  not  submit  their  dispute  to 
adjudication  or  conciliation,  and  proceed  to  fight  re- 


Cooperation  versus  Compulsion  275 

gardless  of  the  rest?  Is  it  to  be  permitted,  when  both 
parties  to  the  dispute  violate  their  obligations  as  mem- 
bers of  the  League  and  engage  in  war,  that  the  others 
may  be  neutral,  or  must  the  non-disputants  fight  both 
the  disputants?  Would  any  member  of  the  League 
which  felt  that  both  belligerents  had  violated  its  pro- 
visions be  able  to  claim  any  right  or  perform  any  duties 
as  a  neutral,  if  other  nations  of  the  League  held  that 
only  one  of  the  belligerents  had  violated  the  constitution 
of  the  League? 

The  proposal  that  the  members  of  the  League  shall 
use  joint  economic  and  military  force  recognizes  and 
legalizes  the  use  of  military  force  to  bring  into  operation 
the  destructive  economic  forces  of  cold  and  hunger. 
Economic  force  used  to  compel  submission,  if  morally 
justifiable  at  all,  can  only  be  justified  when  used  as 
humanely  as  possible  by  a  skillful  legislature  and  execu- 
tive of  a  responsible  organized  society.  In  times  of 
peace  economic  force  may  be  so  directed  as  to  affect 
classes  of  people  to  the  benefit  of  all.  In  times  of  war, 
however,  it  can  only  be  used  to  compel  submission,  and 
inevitably  injures  both  combatants  and  non-comba- 
tants. Economic  force  used  in  war,  or  as  a  substitute 
for  military  force  in  compelling  submission,  destroys 
alike  infants,  children,  women,  the  sick,  the  aged,  as 
well  as  the  men  of  fighting  age  and  ability.  The  horrors 
of  its  use  far  surpass  the  horrors  of  war  between  armed 
men.  The  use  of  economic  force  to  compel  submission — 
whether  by  encirclement  and  siege  on  land,  by  blockade 
of  commercial  ports,  by  destroying  unarmed  ships  of 
commerce,  by  general  embargo,  by  general  prohibitive 
tariff,  or  by  prohibitive  regulations  designed  to  effect 
a  boycott — recoils  upon  those  who  use  it.  Not  only 
does  such  use  of  economic  force  generally  involve  the 
nation  using  it  in  economic  loss,  but,  since  it  involves 


276  The  American  Philosophy  of  Government 

the  destruction  of  the  weak,  the  innocent,  and  the 
helpless,  it  decivilizes  the  people  of  the  nation  using  it 
and  sets  back  civilization  generally. 

The  league,  therefore,  in  order  not  to  be  an  entangl- 
ing alliance,  and  in  order  not  to  extend  the  inhumane 
and  decivilizing  use  of  economic  force,  must  have  a 
permanent  legislature  and  an  executive.  But  if  these 
are  added,  the  plan  becomes  one  for  establishing  a  fed- 
eral state  out  of  widely  separated  nations.  The  failure 
of  the  Imperial  Federation  movement  in  the  British 
Empire  shows  that  a  federal  state  composed  of  non- 
contiguous states  or  nations  is  an  impossibility. 

The  proposed  constitution  of  the  league  makes  no 
reference  to  the  greater  part  of  the  internal  relation- 
ships of  the  league  and  none  at  all  to  its  external  rela- 
tionships. That  such  a  league  would  arouse  suspicion 
and  jealousy  on  the  part  of  the  omitted  nations  goes 
without  saying.  The  league,  in  order  to  have  an  op- 
portunity to  be  internally  peaceful,  would  have  to  be 
so  completely  dominant  over  all  nations  outside  it  that 
those  nations,  either  separately  or  in  alliance,  would 
never  dare  to  attack  it  or  any  member  of  it.  A  domi- 
nant league  would  soon  bring  under  its  control  all  the 
weak  and  backward  nations  outside  it,  and  the  world 
would  find  itself  in  the  hands  of  an  oligarchy  of  widely 
separated  nations ;  an  oligarchy  which  would  itself  ulti- 
mately be  ruled  by  the  nation  or  nations  controlling 
the  sea. 

The  proposed  constitution  of  the  league,  whether  it 
provides  for  a  weak  league,  a  strong  league,  or  a  domi- 
nating league,  is  inconsistent  with  the  whole  concep- 
tion of  the  society  of  nations  and  of  the  law  of  nations 
recognized,  formulated,  and  applied  by  that  society, 
which  has  been  slowly  built  up  by  the  thought  and 
effort  of  the  world.      A  league  of  separated  nations 


Cooperation  versus  Compulsion  277 

differs  in  nature  from  a  league  of  contiguous  nations. 
A  league  of  separated  nations  must,  in  order  to  live, 
be  dominant  at  sea,  and  probably  also  on  the  land  and 
in  the  air.  A  league  of  contiguous  nations  forms  a 
district  in  the  whole  organization  of  the  earth's  surface, 
and  its  local  self-government  is  consistent  with  the  local 
self-government  of  other  district  leagues.  If  the  world 
were  divided  among  several  great  district  leagues  or 
unions,  they  would  tend  to  establish  a  super  national 
authority  over  all.  A  league  of  separated  nations,  on 
the  other  hand,  would  tend  to  be  the  supernational 
authority.  If  there  were  several  such  leagues,  they 
would  tend  to  fight  until  one  of  them  became  the  super- 
national  authority. 

Finally,  the  plan  exposes  all  nations  to  new  and  real 
dangers.  It  is  said  by  the  promoters  of  the  plan  that  the 
league  is  not  dangerous  to  its  members  or  to  the  nations 
outside  of  it,  because  the  members  will  never  be  called 
upon  to  perform  their  obligation  to  go  to  war,  since  the 
mere  existence  of  the  league,  and  the  fear  of  joint 
action,  will  keep  the  peace.  The  hard  experience  of 
many  men  and  women  who  have  entered  into  dangerous 
obligations  on  representations  made  to  them  by  persons 
they  have  trusted,  that  they  would  never  be  required  to 
fulfill  their  obligations,  proves  the  fallaciousness  of 
this  plea. 

We  conclude,  therefore,  that  the  proposed  constitu- 
tion of  the  League  to  Enforce  Peace  is  objectionable : 

Because  it  seeks  to  use  the  processes  and  organs 
which  are  suitable  only  for  the  voluntary  and  coopera- 
tive form  of  organization  and  to  make  them  compulsive ; 

Because  it  proposes  compulsion  of  great  nations  by  a 
number  of  great  nations,  which  is  either  an  impossibility 
or  a  plan  for  universalizing  war; 

Because  it  either  proposes  to  submit  to  possible  de- 


278    The  American  Philosophy  of  Government 

struction  nations  adjudged  by  the  League  to  have  vio- 
lated its  constitution  and  thereby  ultimately  to  establish 
a  world-monopoly,  or  to  compel  submission  to  concilia- 
tion, which  is  impossible  in  the  nature  of  things ; 

Because  it  lacks  a  permanent  legislature  and  an  execu- 
tive, and  thereby  provides  for  an  entangling  alliance 
and  an  indefinite  and  disorderly  extension  of  economic 
force,  which,  however  applied,  is  essentially  inhuman, 
since  it  operates  upon  non-combatants  as  well  as 
combatants ; 

Because,  if  a  permanent  legislature  and  an  executive 
be  added,  the  plan  becomes  one  for  the  establishment 
of  a  federal  state  composed  of  widely  separated  nations, 
which  experience  shows  to  be  impossible ; 

Because  the  League  must  either  be  weak  and  subject 
to  external  attack,  or  dominant  over  all  outside  nations ; 

Because  the  League,  being  composed  of  scattered 
nations,  whether  it  be  weak  and  precarious,  or  strong 
and  dominant,  is  inconsistent  with  the  whole  conception 
of  the  society  of  nations  and  the  law  of  nations,  and 
tends  to  the  destruction  of  international  order  and  law ; 

Because  the  League  is  not,  as  its  advocates  would 
have  us  believe,  a  means  of  producing  universal  peace 
without  danger  to  its  members,  but,  if  carried  into 
effect,  would  be  a  political  union  of  an  imperfect  and 
defective  kind,  involving  its  members  in  complicated 
and  highly  onerous  relationships,  and  imposing  upon 
each  obligations,  which  it  must  fulfill  at  the  risk  of  its 
destruction  by  the  others. 

Are  we  then  driven  to  the  conclusion  that  there  is  no 
hope  for  a  more  economical,  efficient,  and  therefore, 
peaceful ,  organization  of  the  society  of  nations  except 
by  organizing  that  society  into  a  federal  state,  which  is 
clearly  beyond  the  range  of  practical  politics?  I  believe 
not.      The  possibilities  of  voluntary  and  cooperative 


Cooperation  versus  Compulsion  279 

organization  have  not  yet  been  exhausted.  In  the 
industrial  world  as  at  present  organized,  enormous 
groups  and  societies  and  corporations  carry  on  their 
operations  and  settle  their  disputes  and  strikes  by 
wholly  voluntary  and  conciliative  methods.  The  suc- 
cess attained  in  this  field  should  stimulate  those  who 
are  interested  in  political  organization  on  a  vast  scale 
to  explore  the  possibilities  of  this  new  science  of  co- 
operative organization.  The  great  industrial  groups 
and  societies  of  the  modern  industrial  world  resemble 
nations  in  that  no  compulsion  of  them  by  the  state  is 
possible,  because  their  power  rivals  that  of  the  state 
itself.  But  experience  seems  to  have  shown  that  not 
only  is  compulsion  ot  those  vast  societies  impossible, 
but  that  it  is  also  unnecessary,  since  the  increasing  rea- 
sonableness of  democratically  organized  societies,  under 
modern  conditions  of  universal  education,  makes  con- 
ciliation increasingly  possible.  It  may  well  be  that  the 
voluntary  processes  and  organs  which  have  been  found 
suitable  for  holding  in  cooperative  union  the  great  in- 
dustrial groups  and  societies  may  prove  to  be  more  ef- 
fective for  holding  the  nations  together  in  peace  than 
the  compulsive  processes  and  organs  which  we  use  ^  in 
our  federal  states. 

Moreover  the  nations  of  the  world  are  now  actually 
organized  as  a  voluntary  and  cooperative  union  under 
the  Convention  for  the  Pacific  Settlement  of  Interna- 
tional Disputes.  That  Convention,  as  adopted  by  the 
First  Hague  Conference,  was  accepted  by  all  the  nations 
of  the  world  except  three  small  nations — Costa  Rica, 
Honduras,  and  Korea,  the  last  named  of  which  has 
since  lost  its  independence.  It  was  thus,  to  all  intents 
and  purposes,  a  unanimous  and  universal  compact  of 
all  nations.  It  formed  the  signatory  nations  into  a 
union  by  establishing  certain  processes  for  determining 


28o  The  American  Philosophy  of  Government 

their  relationships  as  members  of  the  union  and  by 
instituting  certain  organs  of  the  union  to  carry  on  these 
processes.  It  was  thus  a  constitution.  By  its  univer- 
sal acceptance,  the  union  of  all  nations  became  a  matter 
of  political  fact  and  practical  politics.  The  union  thus 
constituted  was  an  organized  political  society  with  pro- 
cesses and  organs  of  conciliation,  arbitration,  and  law- 
formulation.  The  convention,  as  originally  adopted, 
still  holds,  although  the  revisions  and  amendments  made 
at  the  Second  Conference  in  1907  have  not  yet  received 
unanimous  adoption. 

The  union  of  nations,  thus  constituted,  was,  how- 
ever, a  very  imperfect  union.  The  processes  were  un- 
scientific, and  the  organs  were  inadequate.  These 
processes  may  be  made  more  scientific,  and  these  or- 
gans may  be  made  more  adequate.  To  do  this  would 
be  doing,  in  a  new  way  and  on  a  broader  scale,  what 
our  American  statesmen  did  in  1787 — it  would  be  the 
formation  of  "a  more  perfect  union." 

The  perfecting  of  the  cooperative  union  of  the  na- 
tions will  require,  not  only  the  scientific  development 
and  the  local  extension  of  the  processes  of  conciliation, 
adjudication,  and  law-formulation  throughout  the 
union,  but  also  the  removal  of  the  obstacles  to  the  co- 
operative life  and  action  of  the  nations.  The  principal 
obstacles,  at  the  present  time,  are  the  external  monopo- 
lies of  nations,  and  secret  agreements.  These  external 
monopolies  may  be  abolished  by  means  of  universal 
agreements  for  the  common  and  equal  use  by  nations 
of  the  sea  and  the  air,  which  are  by  nature  the  common 
property  of  all  nations;  by  the  extension  of  the  areas 
of  federal  or  cooperative  union  on  the  land;  and  by 
recognizing  the  ''open  door"  in  colonies,  dependencies, 
and  spheres  of  influence.  Secret  agreements  can,  it 
would  seem,  only  be  abolished  by  the  gradual  estab- 


Cooperation  versus  Compulsion  281 

lishment  of  the  principle  that  all  secret  agreements  are 
void  for  all  purposes,  as  contrary  to  public  policy. 

It  may  thus  be  possible  to  make  the  existing  union 
of  nations  so  effective  that  economic  or  military  force 
will  not  be  required.  If,  however,  such  force  should  be 
found  necessary,  a  basis  will  have  been  laid  for  the 
establishment  of  a  suitable  and  legally  limited  super- 
national  authority  to  wield  the  force  of  the  union  with 
skill  and  efficiency,  and  such  a  supernational  authority 
will  no  doubt  in  due  time  be  evolved. 

The  practical  course,  therefore,  is,  it  would  seem,  to 
take  as  our  basis  of  thought  and  action  the  present 
written  constitution  of  the  cooperative  union  of  nations 
— the  Convention  for  the  Pacific  Settlement  of  Inter- 
national Disputes  as  originally  adopted,  the  one  unani- 
mous act  which  has  ever  happened  among  men,  so  far 
as  appears,  since  the  dawn  of  history.  On  that  founda- 
tion, it  may  be  possible,  by  taking  thought  and  pro- 
ceeding with  careful  steps,  gradually  to  evolve  a  more 
and  more  perfect  cooperative  union  of  the  nations, 
which  shall  secure  to  them  order  and  law,  and  permit 
them  to  live  in  peace. 

Washington,  D.  C,  May  15,  19 16. 


COOPERATIVE  UNION  OF  NATIONS 


283 


COOPERATIVE  UNION  OF  NATIONS 

Self-interest,  not  fear;  self-aggrandizement  of  all  by  utilizing  equita- 
bly the  resources  which  are  properly  common  to  all — that  is  the  funda- 
mental principle  or  motive  upon  which  cooperative  imion  of  nations  is 
already  working  and  may  be  internationally  developed,  according  to  Mr. 
Snow.  Readers  of  The  World  Court  Magazine  will  recall  Mr.  Snow's 
suggestive  article  on  "An  International  Directorate"  last  October.  He 
now  contributes  the  following  striking  study  of  the  possibilities  of 
cooperative  union  and  the  fimctions  of  the  directorate  in  such  a  union. 

Reprinted  from  The  World  Court  Magazine^  April,  1918 

"  It  would  bind  together  by  means  of  continuous,  friendly,  and  help- 
ful correspondence,  not  merely  the  governments  of  the  nations,  but  the 
legislatures  and,  through  them,  the  peoples.  It  would  be  an  agency  of 
persuasive  influence,  formed  by  the  nations,  of  the  nations,  and  for  the 
nations." — From  an  address  at  a  dinner  in  honor  of  Senator  France  of 
Maryland,  New  York  City,  May  1920. 

DURING  the  last  century,  plans  for  organizing  the 
nations  as  a  union  were  generally  modeled  upon 
the  Constitution  of  the  United  States,  and  pro- 
vided for  forming  them  into  a  federal  state.  Of  late 
years,  the  tendency  has  been  to  use  the  Articles  of 
Confederation  as  the  model,  and  the  proposals  made 
have  generally  had  for  their  purpose  the  institution  of 
a  confederation  or  league  of  nations. 

The  federal  state  plan  seems  to  be  losing  ground. 
The  reason  apparently  is  that  no  nation  is  now  willing, 
or  is  ever  likely  to  be  willing,  to  subject  itself,  even  as 
respects  those  matters  which  are  of  common  concern 
to  all  nations,  to  a  federal  government,  which  necessa- 
rily acts  through  a  majority  of  the  nations  and  whose 
statutes  are  enforced  by  a  federal   army  and  navy. 

285 


286  The  American  Philosophy  of  Government 

Such  a  majority  would  be  composed  of  nations  all  of 
which  would  be  diverse  in  race,  tradition,  character 
and  civilization  from  the  nation  affected,  and  many  or 
most  of  which  would  be  widely  separated  from  the 
nation  affected  and  from  each  other.  A  majority  so 
constituted  would,  it  is  feared,  be  incapacitated,  by  the 
conditions  under  which  it  would  necessarily  act,  from 
making  decisions  and  issuing  statutory  commands 
which  would  be  so  just  and  equitable  that  they  could 
be  executed  against  the  members  by  federal  armed 
forces. 

The  plan  for  a  confederation  or  league  of  nations  has 
widespread  support  and  approval.  A  confederation  or 
league  is,  however,  open  to  objection  because  of  the 
lack  of  leadership  and  direction.  In  lieu  of  leadership, 
reliance  is  placed  upon  action  of  the  nations  in  common 
in  each  emergency  as  it  arises.  By  such  action  in  com- 
mon it  is  impossible  to  make  adequate  provision  for 
preventing  friction  or  avoiding  dispute  between  the 
members,  and  all  that  can  be  done  is  to  settle  disputes 
after  they  have  arisen.  The  settlement  of  disputes  is  of 
course  desirable,  but  it  is  far  more  desirable  to  prevent 
friction  from  arising  or,  if  that  be  impossible,  to  prevent 
it  from  taking  the  acute  form  of  dispute.  History 
shows  that  a  confederation  or  league  either  disintegrates 
or  converts  itself  into  a  more  perfect  unity.  The  plan 
for  a  confederation  or  league  of  nations  can  therefore, 
it  would  seem,  reasonably  be  supported  only  as  a  tem- 
porary expedient,  and  as  a  half-way  house  towards  a 
more  perfect  and  ultimate  form  of  union  which  is 
planned  and  foreseen,  and  which  may  reasonably  be 
regarded  as  attainable  in  the  not  remote  future.  As  a 
matter  of  fact  this  plan  is  generally  advocated,  not  as 
an  ultimate  solution  but  as  a  temporary  expedient. 
It  thus  becomes  material  to  any  argument  in  favor  of 


Cooperative  Union  287 

a  league  of  nations,  that  the  ultimate  form  which  the 
union  of  nations  ought  to  have  should  be  specified.  If, 
in  the  course  of  the  study  of  the  form  of  union  which  is 
to  supersede  the  league,  a  kind  of  permanent  union 
should  be  discovered  which  should  be  found  to  be 
satisfactory  to  the  nations  and  thus  capable  of  immedi- 
ate adoption,  so  much  the  better.  In  that  case  a  league 
of  nations  would  cease  to  be  expedient  or  desirable. 

The  experience  of  societies  and  corporations  for  eco- 
nomic and  social  purposes  in  forming  themselves  into 
unions  has  shown  that  there  is  a  kind  of  union,  which 
may  be  described  as  cooperative.  In  19 14,  there  were 
about  four  hundred  international  unions  of  a  coopera- 
tive and  non-poHtical  character.  This  kind  of  union  is 
plainly  capable  of  political  application,  but  it  has  as 
yet  been  so  applied  only  tentatively  and  experimentally, 
and  its  full  potentiality  for  political  purposes  has  there- 
fore not  yet  been  determined.  The  most  conspicuous 
example  of  cooperative  union  in  the  political  world 
would  seem  to  be  the  Pan-American  Union,  a  very 
useful  and  successful  organization,  though  yet  inten- 
tionally undeveloped,  out  of  caution,  so  that  the  limit 
of  its  full  potentiality  is  yet  unknown.  Some  writers 
hold — doubtless  correctly — that  the  nations,  by  enter- 
ing with  practical  unanimity  into  the  Hague  Convention 
for  the  Pacific  Settlement  of  International  Disputes, 
formed  themselves,  by  the  necessary  implications  of 
that  Convention,  into  a  cooperative  union,  of  which  the 
Permanent  Court  of  Arbitration,  the  Permanent  Ad- 
ministrative Council  and  the  International  Bureau  are 
the  present  organs.  If  this  be  the  legal  effect  of  that 
Convention, — as  it  would  clearly  seem  to  be, — the 
nations  are  now  in  law  united  in  a  cooperative  union  of 
an  imperfect  and  inadequate  character,  but  capable  of 
indefinite  development. 


288  The  American  Philosophy  of  Government 

The  fundamental  principle  or  self-evident  truth  on 
which  cooperative  union  is  based  seems  to  be  that 
normal  persons  are  influenced  as  respects  their  action 
and  relationship  by  self-interest  and  not  by  fear;  and 
that  the  normal  motive  is  the  innate  desire  for  self- 
aggrandizement.  A  cooperative  union  thus  frankly  and 
openly  appeals  to  self-interest  and  devotes  itself  to 
enabling  each  unit  to  attain  self-aggrandizement  to  the 
utmost  extent  possible.  It  holds  that  self-aggrandize- 
ment of  any  one  person  or  nation  is  dependent  upon  the 
self-aggrandizement  of  all  other  persons  and  nations. 
Abnormal  persons  or  nations,  which  through  lack  of 
development  or  disease  are  incapable  of  realizing  their 
own  real  self-interest  and  of  having  the  desire  of  reason- 
able self-aggrandizement,  it  seeks  to  restore  to  normal- 
ity, using  such  restraint  as  may  be  necessary  for  the 
purpose. 

A  cooperative  union  of  nations  would  thus  have  for 
its  object  the  self-aggrandizement  of  all  nations,  and 
it  would  attain  this  object  by  devising  plans,  promul- 
gating counsel,  and  persuading  to  voluntary  action,  so 
as  to  enable  all  nations  to  utilize  equitably  the  resources 
which  are  properly  common  to  them  all,  for  universal 
self-  aggrandizement . 

It  will  be  objected  that  the  cooperative  principle  is 
too  abstruse  for  the  average  man,  and  so  much  at 
variance  with  the  notions  of  the  average  statesman  and 
publicist  as  not  to  be  capable  of  application  in  practical 
politics.  To  this  it  may  be  answered  that  even  before 
the  war  the  cooperative  principle  had  made  great 
headway  in  the  world,  and  that  though  the  war  has 
temporarily  divided  the  world  into  two  groups,  yet 
during  the  war  the  progress  of  the  principle  within  each 
group  has  been  even  more  marked.  As  the  principle, 
if  correct,  is  of  universal  application,  it  is  reasonable  to 


Cooperative  Union  289 

hope  that,  after  the  war,  a  universal  application  may 
sooner  or  later  be  possible. 

The  organ  or  agency  through  which  a  cooperative 
society  or  union  directs  its  effort  towards  the  common 
object  is  not  strictly  a  "government,"  since  that  word 
in  its  accepted  and  practically  universal  usage  implies 
power  not  only  to  induce  voluntary  action  and  relation- 
ship towards  a  common  object,  but  also  to  compel 
involuntary  action  and  relationship  towards  this  object. 
The  word  ''directorate"  seems  most  appropriate,  inas- 
much as  the  organ  by  which  our  modern  cooperative 
business,  charitable,  social  and  scientific  associations 
and  corporations  act,  is  generally  called  a  board  of 
directors,  or  a  directorate.  The  French  use  of  the  word 
directoire  to  describe  the  post-revolutionary  French 
government,  and  the  European  use  of  the  word  "di- 
rectory" to  describe  the  monarchial  alliance  to  govern 
the  world  which  arose  out  of  the  Congress  of  Vienna, 
militate  against  the  use  of  that  word.  But  "directo- 
rate" in  its  modern  sense  has  taken  on  a  meaning  quite 
distinct  from  "directory,"  and  the  verb  "to  direct" 
seems  from  its  derivation  to  contain  the  idea  of  personal 
action,  setting  the  diverse  actions  of  other  persons  in 
the  right  course,  by  counsel  and  persuasion  on  the  one 
part. and  consent  on  the  other. 

The  directorate  might  have  any  form  which  the 
nations  should  agree  upon,  but  a  directorate  of  the  typ- 
ical form  would  seem  to  be  exceedingly  simple — con- 
sisting of  a  general  representative  committee  and  a 
small  appointed  managing  or  executive  committee. 
Most  cooperative  societies  and  cooperative  unions  of 
societies  seem  to  find  this  form  the  most  economical  and 
efficient.  The  function  of  the  directorate  of  a  coopera- 
tive union  of  nations  would  be  to  give  correct  counsel 
to  the  nations.     The  appointed  managing  committee 


290  The  American  Philosophy  of  Government 

would  be  best  adapted  for  giving  counsel  in  most  cases ; 
but  in  order  that  it  might  give  correct  counsel,  the 
experience  of  cooperative  unions  generally  shows  that 
it  would  be  necessary  that  there  should  be  a  superin- 
tending representative  committee  to  revise  the  counsel 
of  the  appointed  managing  committee  in  cases  where  such 
revision  should  appear  to  be  needful.  The  counsel  given 
would  result  in  acts  by  common  consent  of  the  nations, 
which  would  have  a  legislative,  judicial,  and  executive 
character ;  but  the  directorate  would  not  itself  legislate  or 
execute,  though  it  might  adjudicate  or  arbitrate  in 
cases  which  were  proper  for  adjudication  and  which 
might  be  submitted  to  it  for  adjudication  or  arbitration. 
The  counsel  given  by  the  directorate,  the  adjudications 
made  by  it,  and  the  arbitral  awards  announced  by  it, 
when  acquiesced  in  generally  by  the  nations,  would 
tend  to  establish  accepted  rules  of  international  action, 
which  would  become  a  part  of  international  law.  Vol- 
untary acceptance  and  carrying  out  of  the  counsel, 
judgment  or  award  of  the  directorate  by  the  nation  or 
nations  affected  would  take  place  in  lieu  of  an  execu- 
tion in  the'  ordinary  sense.  If  nations  saw  fit,  they 
could  without  interfering  with  the  directorate,  hold 
general  conferences  for  promulgating  rules  of  future 
action  and  relationship,  which,  when  duly  accepted, 
would  become  rules  of  international  law. 

An  international  directorate,  in  order  to  exercise  real 
political  force,  would  need  to  have  the  power  to  counsel 
and  persuade  the  nations  and  to  induce  them  volun- 
tarily to  conform  to  the  counsel  given ;  and  in  addition  it 
would  need  to  have  all  incidental  powers  necessary  to 
make  the  principal  grant  of  power  effective.  The  na- 
tions would  thus  delegate  to  the  international  directo- 
rate the  power  to  investigate  facts,  to  inquire  of  persons 
and  receive  correct  information,  to  send  its  investigating 


Cooperative  Union  291 

agents  into  any  part  of  the  world,  to  have  its  diplo- 
matic agents  in  each  nation,  to  formulate  and  promul- 
gate counsel  upon  the  facts  ascertained,  and  to  publish 
reasoned  statements  in  support  of  its  action  in  order 
to  bring  to  its  aid  the  moral  pressure  of  public  opinion. 

Jurisdiction  over  all  matters  of  common  interest  to 
all  nations  or  beyond  the  competency  of  any  one  or 
several  of  them,  might  be  conferred  on  an  international 
directorate;  but  such  a  plenary  jurisdiction  is  not  es- 
sential, and  the  nations  might  reserve  to  themselves  any 
of  the  powers  within  this  category  which  they  saw  fit 
not  to  delegate.  The  matter  which  is  of  the  greatest 
common  interest  to  all  nations  is  international  com- 
merce. Just  regulation  in  this  respect  is  absolutely 
essential  to  international  cooperation.  In  exercising 
jurisdiction  over  questions  arising  out  of  international 
commerce,  it  would  be  necessary  for  the  directorate  to 
counsel  and  persuade  the  nations  so  as  to  bring  about 
a  just  and  equitable  use  of  the  highways  of  international 
trade, — the  high  seas,  the  international  canals,  rivers 
and  railroads ;  so  as  to  bring  about  a  just  and  equitable 
international  intercourse  and  migration;  and  so  as  to 
induce  justice  and  equity  in  the  employment  of  the 
instruments  of  international  trade  and  finance. 

The  most  difficult  and  delicate  matter  regarding 
which  an  international  directorate  would  have  to  exer- 
cise its  conciliative  jurisdiction  would  be  the  superin- 
tending of  territorial  adjustments  between  nations. 
This  is  a  subject  which  is  of  the  greatest  interest  to  all 
nations,  and  up  to  the  present  time  no  way  has  been 
found  to  regulate  it  except  through  war  or  the  threat  of 
war.  In  order  to  exercise  successfully  a  conciliative 
jurisdiction  over  this  subject,  it  would  be  necessary  for 
the  directorate  to  apply  an  equitable  principle  accepted 
by  the  nations.    Otherwise  its  counsel  would  be  mere 


292  The  American  Philosophy  of  Government 

opportunistic  intermeddling,  and  would  be  likely  to 
produce  rather  than  to  prevent  war.  The  principle 
applicable  in  the  determination  of  all  territorial  adjust- 
ments between  nations  would  seem  to  be  that  the  units 
of  a  union  of  nations,  being  theoretically  equal  in  the 
union,  ought  to  be  as  nearly  as  possible  equal  in  size 
and  strength.  It  is  of  course  not  impossible  that  large 
and  strong  units  of  territory  and  population  should 
live  in  cooperative  union  with  small  and  weak  ones; 
but  such  a  situation  is  dangerous  to  international  peace 
and  order,  and  the  more  nearly  the  units  can  be  equili- 
brated by  being  made  equal  in  size  and  strength,  the 
more  harmonious  and  perfect  will  their  union  be.  The 
principle  that  units  of  a  union  ought  to  be  actually  as 
well  as  theoretically  equal  is,  however,  not  peculiar  to 
cooperative  unions.  It  is  equally  applicable  to  federal 
states  and  even  to  confederations,  as  the  experience  of 
the  United  States  shows.  The  Articles  of  Confederation 
nearly  failed  of  adoption  and  the  Confederation  was 
threatened  with  dissolution,  because  of  the  inequality 
between  the  states  arising  from  the  fact  that  some  of 
them  claimed  vast  portions  of  the  Northwest  Territory. 
The  other  states  realized  that,  if  these  states  were 
allowed  to  expand  into  the  Northwest  Territory,  the 
inequality  in  size  and  strength  between  these  enormous 
states  and  themselves  would  in  practice  make  the  theo- 
retical equality  of  all  the  states  nugatory,  and  that  the 
smaller  states  would  lose  their  independence  and  become 
in  fact  dependencies  of  the  great  states.  The  smaller 
states  insisted  that  it  was  essential  to  the  proposed 
union  that  the  claims  of  the  states  to  the  Northwest 
Territory  should  be  ceded  to  the  Union,  and  that  the 
Union  shoiild  lay  out  the  ceded  territory  into  new 
states  of  the  average  size  of  the  original  states,  which 
should  as  soon  as  possible  be  admitted  into  the  Union. 


Cooperative  Union  293 

Thus  all  the  units  of  the  Union,  present  and  future, 
would  be  approximately  equal  in  fact. 

The  union  of  all  nations, — which,  though  very  im- 
perfect, really  exists  at  the  present  time, — is  in  a  posi- 
tion similar  to  that  of  the  United  States  during  the 
period  from  1779  to  1783,  when  the  problem  of  equili- 
brating the  units  of  the  Union  was  being  considered. 
The  existing  union  of  nations  is  composed  of  great  and 
small  nations.  Some  of  the  nations  claim  as  dependen- 
cies extensive  areas  of  the  earth's  surface  outside  their 
domestic  realms.  The  smaller  nations,  and  those  of 
the  larger  nations  which  are  without  dependencies,  are 
beginning  to  realize  that  equilibration  of  the  units  is  in 
the  long  run  essential  to  the  full  effectiveness  and  power 
of  a  cooperative  union  of  the  nations;  and,  while  it  is 
recognized  that  the  circumstances  do  not  permit  of  a 
drastic  and  instantaneous  equilibration,  it  is  felt  that 
in  the  course  of  time  and  as  circumstances  permit, 
measures  must  be  taken  by  mutual  and  friendly  agree- 
ment for  transferring  to  the  union  of  nations  those 
claims  of  jurisdiction  over  external  regions  now  asserted 
by  individual  nations,  in  order  that  the  union  may  lay 
out  these  external  regions  into  new  nations  of  the 
average  size  and  strength  of  the  existing  nations  with 
the  understanding  on  the  part  of  all  concerned  that 
these  new  nations  shall  be  admitted  into  the  union  of 
nations  when  duly  qualified.  Moreover,  it  is  being 
realized  that,  inasmuch  as  nations,  like  human  beings, 
are  born,  grow  and  decay,  there  must  be  provision  made 
for  new  equilibrations  of  the  units  by  the  union  of 
nations  whenever  new  nations  are  formed  through  ami- 
cable division  of  great  nations  or  through  junction  of 
small  nations  or  parts  of  nations.  The  United  States  in 
its  constitution  wisely  made  provision  for  such  a  con- 
tinuous equilibration  by  conferring  upon  its  Congress 


294  The  American  Philosophy  of  Government 

not  only  the  power  to  dispose  of  and  make  all  needful 
rules  and  regulations  respecting  the  territory  or  other 
property  belonging  to  the  United  States,  but  also  the 
power  to  regulate,  by  giving  or  denying  its  approval, 
the  formation  of  all  proposed  new  states  by  voluntary 
division  of  states  or  by  the  voluntary  junction  of  states 
or  parts  of  states,  and  to  admit  into  the  Union  these  new 
states,  whether  formed  out  of  dependencies  of  the  Union 
or  out  of  the  states  of  the  Union,  whenever  it  should 
consider  them  qualified  for  admission. 

In  order  to  effect  such  an  equilibration  of  the  units 
of  the  union  of  nations,  it  would  be  necessary  to  delegate 
to  the  international  directorate  jurisdiction  to  counsel 
the  nations  in  this  respect  and  gradually  to  induce  a 
voluntary  equilibration  by  its  conciliative  action. 

A  cooperative  union,  having  at  its  head  a  directorate 
exercising  by  conciliative  means  a  moral  influence  over 
the  complicated  common  affairs  of  the  nations,  would 
not  be  a  weak  union.  The  power  to  counsel  and  per- 
suade and  to  induce  adoption  of  its  counsel  by  publi- 
cation designed  to  influence  public  sentiment  in  its 
favor,  delegated  by  all  nations  to  a  directing  committee, 
would  be  a  tremendous  and  dangerous  power.  It  would 
have  to  be  most  carefully  safeguarded  by  constitutional 
limitations  and  prohibitions.  The  nations  would  have 
to  preserve  to  the  fullest  extent  their  power  of  self- 
determination,  and  would  need  to  scrutinize  and  criti- 
cize the  action  of  the  international  directorate  with 
perfect  freedom  before  adopting  its  counsel.  The  sole 
ground  for  adopting  its  counsel  or  yielding  to  its  per- 
suasion would  be  the  conviction  of  the  conscience  of 
each  nation  of  the  justness  of  the  counsel  given.  Every 
counsel  of  the  international  directorate  adopted  by  the 
nations  through  conscientious  conviction  of  its  justness 
would  strengthen  the  moral  influence  of  the  directorate 


Cooperative  Union  295 

and  heighten  the  presumption  in  favor  of  the  justness 
of  its  future  action.  It  is  to  be  expected  that,  as  in  the 
case  of  the  Supreme  Court  of  the  United  States,  popular 
sentiment  in  favor  of  the  international  directorate  would 
steadily  increase  as  the  nations  voluntarily  adopted  its 
counsel.  As  popular  confidence  increased,  its  counsel 
and  persuasion  would  have  a  moral  force  so  great  that 
no  nation  could  refuse  to  follow  the  counsel  given 
except  by  convincing  the  directorate  itself  and  the 
public  generally  that  the  counsel  was  erroneous  and 
unjust. 

Cooperative  union  is  applicable  to  any  minor  group 
of  nations  as  well  as  to  the  great  group  composed  of  all 
nations.  Several  contiguous  small  nations  which  are  too 
heterogeneous  to  unite  as  a  federal  state  may  therefore 
sometimes  find  it  possible  to  unite  themselves  in  a  cooper- 
ative union.  By  means  of  such  minor  cooperative  unions, 
it  may  perhaps  be  possible  to  solve  a  perplexing  problem 
which  for  centuries  has  disturbed  the  society  of  nations — 
that  is,  the  problem  of  bringing  about  a  real  cooperation 
between  the  nations  which  are  large  and  powerful  and 
their  neighbor-nations  which  are  small  and  weak.  This 
is  of  course  a  problem  of  equilibration.  Europe  par- 
ticularly has  been  disturbed  by  this  lack  of  equilibra- 
tion. The  European  concert  has  always  been  ineffective 
as  a  union  because  of  the  close  juxtaposition  of  large 
and  powerful  nations  with  others  which  are  in  compari- 
son small  and  weak.  The  large  and  powerful  nations 
will  of  course  never  consent  to  division,  so  that  the  only 
possible  way  of  equilibrating  the  units  of  the  Concert 
is  through  junction  of  the  smaller  nations  so  as  to  form 
new  units  comparable  in  size  and  strength  with  the 
larger.  The  small  nations  are  too  diverse  in  language, 
tradition  and  racial  traits  to  unite  themselves  in  groups 
as  federal  states,  though  all  have  a  general  character- 


296  The  American  Philosophy  of  Government 

istic  of  Europeanization.  The  diversity  which  exists 
may  perhaps  be  found  to  be  no  obstacle  to  the  coopera- 
tive union  of  groups  of  these  smaller  nations;  each 
group  having  a  directorate  instituted  by  itself.  Such 
unions  would  not  operate  to  diminish  the  independence 
of  the  nations  which  were  members  of  them,  any  more 
than  a  cooperative  union  of  all  nations  under  a  direc- 
torate would  diminish  the  independence  of  all  nations. 
On  the  contrary,  the  smaller  nations  would,  as  members 
of  a  minor  cooperative  union,  in  all  probability  have  a 
more  real  independence  than  they  now  have.  The 
groups  of  small  nations  lying  between  the  large  nations 
— the  groups  of  so-called  buffer-nations — have  a  com- 
mon interest  to  unite  cooperatively  for  the  preservation 
of  their  independence  against  their  powerful  neighbors, 
and  for  the  purpose  of  obtaining  a  real  voice  in  the 
deliberations  of  the  Concert,  through  their  directorates. 
By  the  formation  of  the  groups  of  buffer-nations  into 
cooperative  unions  so  that  each  of  these  unions  would 
approximate  in  size  and  strength  the  average  of  the 
great  nations,  the  European  Concert  might  perhaps  be 
equilibrated  and  might  itself  become  an  effective  co- 
operative union.  The  same  problem  of  small  and  large 
nations  exists  in  all  parts  of  the  world.  If  the  plan  sug- 
gested should  succeed  in  the  European  Concert,  it  would 
doubtless  be  applied  universally. 

Viewing  the  nations  as  together  constituting  an  im- 
perfect union  at  the  present  time, — as  is  doubtless  the 
fact, — all  war  is  now  in  a  sense  civil  war.  If  the  nations 
were  to  recognize  themselves  as  united  in  a  cooperative 
union,  all  war  would  unquestionably  be  civil  war,  since 
war  could  occur  only  between  members  of  the  union. 
A  cooperative  union  such  as  is  above  outlined,  would 
doubtless  tend  to  diminish  civil  war,  but  it  would  not 
wholly  prevent  it.     Therefore,  in  order  that  a  plan  of 


Cooperative  Union  297 

cooperative  union  may  be  practicable,  it  must  be  sup- 
plemented by  adequate  provision  for  dealing  with  civil 
war;  so  that  the  union,  which  is  theoretically  indissolu- 
ble, may  not,  as  the  result  of  civil  war,  be  in  fact  dis- 
solved. But  it  clearly  will  not  do  to  confer  the  power 
to  deal  with  civil  war  upon  the  international  direc- 
torate: for  the  possession  of  such  power  would  neces- 
sitate its  wielding  armies  and  navies  and  would  convert 
its  counsel  and  persuasion  into  command  and  threat, 
thus  depriving  it  of  moral  influence.  The  power  to  deal 
with  civil  war  would  have  to  be  delegated  to  an  inter- 
national agency  other  than  the  directorate.  This 
international  agency  might  and  doubtless  ought  to  be 
called  into  existence  and  operation  by  the  international 
directorate,  in  case  of  emergency,  to  preserve  the  co- 
operative union.  It  would  be  wholly  consistent  with 
the  functions  of  the  international  directorate  if  it  were 
to  be  authorized,  upon  the  outbreak  or  threat  of  hos- 
tilities between  nations,  to  summon  a  war-conference 
of  all  nations,  or  of  all  nations  specially  interested,  or 
of  all  the  non-belligerent  nations,  to  meet  at  a  time  and 
place  appointed  by  it,  and  to  continue  during  the  emer- 
gency, having  power  to  concert  measures  for  the  preser- 
vation of  the  union  by  settling  or  suppressing  the  civil 
war.  The  proceedings  of  such  a  war-conference  should, 
it  would  seem,  be  judicial  in  character;  the  object  being 
to  settle  the  dispute,  and  on  failure  of  such  settlement 
to  adjudge  between  the  belligerents  so  as  to  determine 
which  of  them  ought  on  the  whole  to  be  regarded  as 
the  violator  of  the  cooperative  principle.  The  expec- 
tation would  be  that  the  non-belligerent  nations  would, 
upon  such  adjudication,  side  with  the  belligerent  which 
was  adjudged  to  have  maintained  the  cooperative  prin- 
ciple in  the  dispute,  and  would  cooperate  with  it  in 
enforcing  the  submission  of  its  adversary  to  the  coop- 


298  The  American  Philosophy  of  Government 

erative  regime.  If  after  the  adjudication,  there  should 
be  a  nearly  equal  division  of  the  sympathy  of  the  non- 
belligerents,  and  the  nations  should  form  themselves 
into  two  nearly  equal  groups  of  belligerents,  the  civil 
war  would  be  long,  bloody  and  devastating.  Therefore, 
every  provision  should  be  made  for  enabling  the  non- 
belligerents,  in  a  body,  to  side  fairly,  openly,  justly  and 
unanimously,  after  due  investigation,  consideration  and 
judgment,  with  that  one  of  the  belligerents  which  was 
on  the  side  of  the  union  in  the  dispute;  thus  making 
hopeless  the  military  position  of  the  one  adjudged 
rebellious  and  stifling  the  civil  war  in  its  inception. 

After  the  present  great  war  is  ended,  a  time  is  certain 
to  arrive  for  considering  the  problem  of  international 
reorganization  and  reconstruction.  The  question  will 
be,  whether  to  maintain  and  perfect  the  existing  co- 
operative union  of  the  nations,  or  to  change  it  into  a 
universal  federal  state  or  into  a  universal  confederation 
or  league  of  nations.  The  first  of  these  courses  seems 
most  expedient.  This  would  necessitate  a  gradual 
development  of  the  existing  cooperative  union  by  a  long 
series  of  international  conferences,  each  endeavoring  to 
remove  obstacles  to  international  cooperation  and  to 
provide  more  and  more  effective  organs  and  processes 
for  directing  the  nations  towards  the  observance  of  the 
cooperative  principle.  Through  such  a  continuous 
development,  cooperative  union  of  the  nations  might 
be  found  adequate  to  produce  the  nearest  approxima- 
tion to  international  justice,  order  and  peace  of  which 
the  human  race  is  capable. 


NEW  NATIONAL  PROCESSES  AND 
ORGANS 


299 


NEW  NATIONAL  PROCESSES  AND 
ORGANS 

Reprinted  from  the  Proceedings  of  the  Academy  of  Political  Science  in 
the  City  of  New  York.     Columbia  University,  June  5,  1919. 

THE  situation  which  arises  from  the  proposal  that 
the  United  States  shall  adopt  the  instrument 
framed  by  the  Paris  Peace  Conference  and 
called  by  it  ''the  Covenant  of  the  League  of  Nations," 
is  unprecedented  in  the  history  of  the  nation.  It  is, 
indeed,  a  situation  which  is  likely  to  arise  only  once  in 
the  life  of  an  independent  state.  The  question  is 
whether  the  United  States  shall  enter  into  a  union 
with  other  states,  under  an  instrument  which,  though 
in  form  a  treaty,  is  in  fact  a  written  constitution,  ceding 
to  the  union  a  portion  of  its  independence  in  considera- 
tion of  a  similar  cession  by  each  of  the  other  states; 
the  union  having  as  its  professed  object  "to  promote 
international  cooperation  and  to  achieve  international 
peace  and  security."  If  the  United  States  decides  to 
enter  the  League,  it  will,  by  the  cession  of  the  necessary 
part  of  the  nation's  independence,  change  its  status 
from  that  of  an  independent  state  holding  relations 
with  other  states  solely  under  the  law  of  nations,  to 
that  of  a  member  state  of  a  union,  subordinate  to  the 
union,  and  whose  relations  to  the  other  states  and  to 
the  union  are  governed  by  the  constitution  of  the  union. 
The  question  arises :  By  what  processes  and  through 
what  organs  shall  the  United  States  act  in  making  its 
decision  upon  the  proposal  to  enter  this  union  and  in 

301 


302  The  American  Philosophy  of  Government 

thus  determining  whether  to  change  its  status?  It  is 
held  by  many — indeed,  it  seems  to  be  generally  taken 
for  granted — that  the  proper  process  is  that  of  treaty, 
pure  and  simple;  and  that,  therefore,  this  great  decision 
may  be  made,  in  behalf  of  the  people  of  the  United 
States,  by  the  President  and  Senate,  the  latter  acting 
by  two-thirds  vote.  Others  hold  that,  inasmuch  as 
the  adoption  of  the  Covenant  will  change  the  character 
of  our  government,  the  treaty-making  power  is  inade- 
quate, and  that  the  change  can  be  made  only  by  amend- 
ing the  Constitution  of  the  United  States  in  the  manner 
provided  by  the  Constitution.  Still  others  insist  that 
as  the  change  of  government  proposed  does  not  involve 
a  change  in  any  specific  part  of  the  Constitution  but 
will  amount  to  superseding  the  whole  Constitution  in 
certain  respects  by  placing  over  it  a  super-constitution, 
the  process  for  amending  the  Constitution  is  not  ap- 
plicable ;  and  that  inasmuch  as  all  powers  not  expressly 
granted  are,  by  the  tenth  amendment,  reserved  to  the 
states  respectively  and  to  the  people,  the  proper  process 
is  that  of  a  constitutional  convention  of  the  states  and 
people  of  the  United  States. 

That  the  treaty-making  process,  pure  and  simple,  is 
not  a  proper  one  in  the  present  case  would  seem  to  be 
clear.  The  Constitution  itself  distinguishes  between 
treaties  of  union  and  treaties  of  the  ordinary  kind  by 
giving  to  Congress  the  power  to  admit  new  states  into 
the  Union.  Evidently  the  admission  of  a  state  into 
an  existing  union  is  possible  only  by  treaty  between 
the  union  and  the  state,  whatever  may  be  the  form  of 
the  action  of  the  parties.  This  power  to  admit  new 
states  undoubtedly  includes  the  power  to  incorporate 
annexed  regions  into  the  union.  The  reason  why  this 
power  to  change  the  character  of  the  government  by 
taking  new  elements  of  territory  and  population  into 


New  National  Processes  303 

its  domestic  body  was  vested  in  Congress,  was  explained 
by  Justice  (now  Chief  Justice)  White  in  the  Insular 
Cases.  In  the  case  of  Downes  v,  Bidwell  (182  U.  S. 
287,  312,  313,  319),  he  said: 

In  view  of  the  rule  of  construction  .  .  .  that  all  powers 
conferred  by  the  Constitution  must  be  interpreted  with 
reference  to  the  nature  of  the  government  and  be  construed 
in  harmony  with  related  provisions  of  the  Constitution,  it 
seems  to  me  impossible  to  conceive  that  the  treaty-making 
power  by  a  mere  cession  can  incorporate  an  alien  people 
into  the  United  States  without  the  express  or  implied  ap- 
proval of  Congress.  ...  If  the  treaty-making  power  can 
absolutely,  without  the  consent  of  Congress,  incorporate 
territory  ...  it  must  follow  that  the  treaty-making 
power  is  endowed  by  the  Constitution  with  the  most  un- 
limited*' right,  susceptible  of  destroying  every  other  pro- 
vision of  the  Constitution;  that  is,  it  may  wreck  our 
institutions.  If  the  proposition  be  true,  then  millions  of 
inhabitants  of  aHen  territory,  if  acquired  by  treaty,  can, 
without  the  desire  or  consent  of  the  people  of  the  United 
States,  speaking  through  Congress,  be  immediately  and 
irrevocably  incorporated  into  the  United  States,  and  the 
whole  structure  of  our  government  overthrown.   .    .    . 

When  the  various  treaties  by  which  foreign  territory 
has  been  acquired  are  considered  in  the  light  of  the  circum- 
stances which  surrounded  them,  it  becomes  to  my  mind 
clearly  established  that  the  treaty-making  power  was 
always  deemed  to  be  devoid  of  authority  to  incorporate 
territory  into  the  United  States  without  the  assent,  express 
or  implied,  of  Congress,  and  that  no  question  to  the  con- 
trary has  ever  been  even  mooted. 

In  the  same  case,  Mr.  Justice  Gray  said  (page  346) : 

"  So  long  as  Congress  has  not  incorporated  the  territory 
into  the  United  States,  neither  military  occupation  nor 
cession  by  treaty  make  the  conquered  territory  domestic 
territory  in  the  sense  of  the  revenue  laws.    , 


304  The  American  Philosophy  of  Government 

The  treaty-making  power  was  thus  described  by 
William  Rawle,  in  his  work,  A  View  of  the  Constitu- 
tion of  the  United  States  (ed.  1829,  page  65) : 

*'  (A  treaty)  is  a  compact  entered  into  with  a  foreign  power, 
and  it  extends  to  all  those  matters  which  are  generally  the 
subjects  of  compact  between  independent  nations.  Such 
subjects  are  peace,  alliance,  commerce,  neutrality,  and 
others  of  a  similar  nature." 

This  conception  of  the  treaty  power  as  a  power  inci- 
dent to  sovereignty,  to  be  exercised  within  the  scope 
and  in  the  manner  established  by  the  law  of  nations 
and  by  the  practice  of  the  leading  independent  states, 
runs  through  the  literature  of  the  public  law  which  was 
in  existence  at  the  time  the  Constitution  was  adopted. 
By  the  law  and  practice  of  nations,  treaties  in  general 
between  independent  states  were  made  by  the  king  or 
chief  executive  in  council.  Treaties  of  union,  however, 
were  not  regarded  as  treaties  but  as  constitutions  of 
government  and  were  made  by  parliaments  in  which  all 
the  estates  of  the  realms  of  the  uniting  states  were 
represented.  This  course  was  pursued  in  the  case  of 
the  treaty  of  union  between  England  and  Scotland  in 
1707,  generally  called  the  "Act  of  Union,"  by  which 
the  two  states  became  one  under  the  name  of  Great 
Britain.  The  parliaments  of  each  of  the  states  author- 
ized by  identical  statute  the  appointment  of  commis- 
sioners "to  treat  and  consult"  concerning  a  union  and 
to  make  a  "report"  to  the  respective  parliaments,  and 
the  parliaments  by  identical  statute  accepted  and 
adopted  their  joint  report  called  "Articles  of  Union." 
In  the  articles,  the  whole  transaction  is  called  a  "treaty 
of  union." 

This  view  of  the  treaty-making  power,  as  a  power  to 
make  all  such  agreements  with  independent  states  as 


New  National  Processes  305 

are  usually  made  between  independent  states,  but  not 
to  make  any  voluntary  agreement  with  other  states 
for  a  cession  of  independence,  whether  mutual  or  other- 
wise, or  to  change  in  any  way  the  character  of  the 
government,  is  plainly  that  held  by  the  Supreme  Court 
of  the  United  States.  That  Court,  speaking  by  Justice 
Field,  in  the  case  of  Geofroy  v.  Riggs  (133  U.  S.  258, 
266,  267),  said: 

That  the  treaty  power  of  the  United  States  extends  to 
all  proper  subjects  of  negotiation  between  our  government 
and  the  government  of  other  nations  is  clear.  .  .  .  The 
treaty  power,  as  expressed  in  the  Constitution,  is  in  terms 
unlimited  except  by  those  restraints  which  are  found  in 
that  instrument  against  the  action  of  the  government  or 
its  departments,  and  those  arising  from  the  nature  of  the 
government  itself  and  that  of  the  States.  It  would  not  be 
contended  that  it  extends  so  far  as  to  authorize  what  the 
Constitution  forbids,  or  a  change  in  the  character  of  the 
government,  or  in  that  of  one  of  the  states,  or  a  cession  of 
any  portion  of  the  territory  of  the  latter,  without  its  con- 
sent. .  .  .  But  with  these  exceptions,  it  is  not  perceived 
that  there  is  any  limit  to  the  questions  which  can  be  ad- 
justed touching  any  matter  which  is  properly  the  subject 
of  negotiation  with  a  foreign  country. 

It  seems  clear,  therefore,  that  the  Covenant  of  the 
League  of  Nations,  which  is  a  super-constitution  of  a 
super-unity  of  which  the  United  States  is  to  be  a  mem- 
ber, cannot  be  adopted  by  the  treaty-making  process 
alone,  since  the  treaty-making  power  does  not  extend 
so  far  as  "to  authorize  a  change  in  the  character  of 
the  government. ' '  Any  act  which  changes  the  character 
of  the  government  is  evidently  an  act  done  in  the  exer- 
cise of  the  constitution-making  power,  whether  it  has 
the  form  of  a  treaty,  a  law  or  an  executive  order. 


3o6  The  American  Philosophy  of  Government 

The  real  question  is:  By  what  process  shall  the 
United  States  enter  into  a  treaty  of  union  having  the 
effect  to  supersede  in  part  the  Constitution  of  the 
United  States?  This  is  the  opposite  case  from  a  treaty 
of  union  for  admitting  into  the  union  a  new  state  or 
for  incorporating  annexed  territory  into  the  domestic 
body.  A  treaty  of  that  sort  is  a  treaty  of  union  for 
expanding  the  national  strength  and  influence ;  a  treaty 
whereby  the  United  States  is  itself  admitted  to  a  union, 
is  a  treaty  for  contracting  the  national  powers  and  has 
a  tendency  to  weaken  the  national  strength  and 
influence. 

Congress  is  declared  to  have  power  as  respects  treaties 
for  the  purpose  of  expansion,  because,  as  Chief  Justice 
White  has  said,  it  represents  the  interests  of  the  people 
of  the  United  States,  all  of  whom  are  vitally  concerned 
in  having  the  domestic  body  of  the  nation  kept  homo- 
geneous and  Americanized.  It  seems  necessarily  to 
follow,  a  fortiori,  that  Congress,  as  guardian  of  these 
vital  interests,  must  have  power  as  respects  treaties 
for  the  purpose  of  contracting  the  national  powers  and 
placing  the  population  in  an  intimate  permanent  union 
and  relationship  with  peoples  having  standards 
and  ideals  different  from  and  possibly  destructive  of 
those  of  the  American  people. 

It  seems  far  more  harmonious  with  the  general  plan 
of  the  Constitution  to  hold  that  the  Constitution  by 
necessary  implication  intrusts  to  Congress  this  pre- 
servative function,  as  the  guardian  of  all  the  people, 
of  determining  whether  the  United  States  shall  par- 
tially extinguish  itself  in  a  union  than  to  hold  that  the 
constitutional  process  for  determining  such  a  question 
is  that  of  constitutional  amendment  or  of  constitutional 
revision  through  a  general  constitutional  convention. 
By  the  practice  of  nations,   the  legislature  of  each 


New  National  Processes  307 

independent  state  is  regarded  as  the  guardian  of  all 
the  people  in  cases  where  a  change  in  the  external 
relations  of  the  state  is  proposed,  which,  if  carried  into 
effect,  will  make  a  difference  in  its  domestic  constitu- 
tion or  diminish  its  independence,  or  which  is  calculated 
to  affect  adversely  the  standards  and  the  ideals  to 
which  its  people  have  attained. 

Congress  undoubtedly  may  and  should  utilize  the 
treaty-making  process  as  a  part  of  the  process  by  which 
it  acts  as  the  guardian  of  the  nation's  interests.  This 
might  be  accomplished  by  Congress  providing  in  the 
act  or  resolution  determining  its  procedure  that  in  case 
the  adoption  of  the  Covenant  should  be  approved  by 
Congress,  the  Covenant  should  then  go  to  the  Senate, 
which  should  act  upon  the  Covenant  as  a  treaty,  de- 
termining the  question  of  its  ratification  by  two-thirds 
vote. 

It  would  seem  clear  that  Congress,  in  thus  exercising 
this  extraordinary  power  of  acting  as  the  guardian  of 
the  interests  of  all  the  people  in  determining  whether 
it  is  advisable  for  the  United  States  to  enter  into  a 
union  with  foreign  states,  is  not  obliged  to  sit,  or  to 
proceed,  in  the  manner  which  the  Constitution  estab- 
lishes for  it  when  it  is  exercising  its  strictly  legislative 
powers.  If  this  interpretation  is  correct,  it  would 
follow  that  Congress,  in  the  act  or  resolution  determin- 
ing its  procedure  in  this  extraordinary  case,  might  pro- 
vide that  the  two  Houses  should  sit  in  joint  session 
and  deliberate  by  states,  the  senators  and  congressmen 
from  each  state  constituting  the  state  delegation  and 
each  state  delegation  having  one  vote.  It  might  also 
be  provided  that  the  question  whether  the  Covenant 
should  be  approved  by  Congress  should  be  determined 
in  the  affirmative  only  by  the  affirmative  vote  of  three- 
fourths  of  the  states,  cast  by  the  state  delegations  in 


3o8  The  American  Philosophy  of  Government 

the  manner  mentioned.  The  principle  established  by 
the  Constitution  that  the  assent  of  three-fourths  of 
the  states  is  necessary  for  amending  the  Constitution, 
would  thus  be  preserved.  If  Congress  should  thus  de- 
cide that  it  was  advisable  for  the  United  States  to 
enter  into  the  Covenant,  the  Senate  would  then  pro- 
ceed to  deliberate  upon  the  ratification  of  the  Covenant 
as  a  treaty,  and  if  it  should  ratify  the  treaty  by  a  two- 
thirds  vote,  there  would  be  every  probability  that  the 
union  proposed  by  the  Covenant  is  worthy  the  ad- 
herence of  the  United  States. 

It  is  not  derogatory  to  the  Senate  that  a  special 
procedure  of  the  kind  suggested  should  be  adopted, 
according  to  which  the  legislative  power  and  the  treaty- 
making  power  would  act  jointly.  The  question  whether 
independent  states  shall  voluntarily  yield  a  portion  of 
their  independence  in  order  to  enter  a  union,  is  of  too 
high  and  solemn  a  character  to  be  decided  by  a  single 
branch  of  the  government  of  a  state.  The  legislature 
and  the  executive  must  together  perform  the  great 
duty  and  take  the  great  responsibility.  It  is  for  this 
reason  that  the  Covenant  will  be  submitted  for  adoption 
to  the  parliaments  of  the  other  states  which  are  to  be 
the  members  of  the  League. 

The  question  of  the  right  of  Congress  to  participate 
in  determining  whether  the  United  States  shall  enter 
the  League,  is  not  a  question  of  the  right  of  the  House 
of  Representatives  to  act  in  the  making  of  treaties, 
though  the  modern  tendency  is  strongly  in  the  direction 
of  allowing  the  popular  branch  of  the  legislature  to 
participate  in  the  making  of  all  important  treaties.  It 
is  one  thing  to  hold  that  Congress,  as  guardian  of  the 
interests  of  all  the  people,  has  the  right  and  duty,  under 
the  law  of  nations  and  the  Constitution,  to  participate 
with  the  ordinary  treaty-making  organs  of  the  United 


New  National  Processes  309 

States  in  determining  whether  the  United  States  shall 
adopt  a  treaty  having  the  nature  of  a  super-constitu- 
tion, which,  if  adopted,  will  change  the  character  of 
our  government  by  converting  what  have  been  the 
foreign  relations  of  the  United  States  into  external 
domestic  relations.  It  is  a  wholly  different  thing  to 
hold  that  the  House  of  Representatives  has  the  right 
under  the  Constitution  to  participate  in  the  making 
of  all  treaties  of  the  ordinary  kind  or  even  in  those  of 
great  economic  or  political  importance. 

The  reasons  why  the  power  to  make  ordinary  treaties 
was  conferred  on  the  President  and  Senate  and  not  on 
Congress,  are  thus  stated  by  William  Rawle  in  his 
book  above  cited,  A  View  of  the  Constitution  of  the 
United  States  of  America  (ed.  1829,  page  65).  Speaking 
of  the  alternatives  which  presented  themselves  to  the 
Constitutional  Convention  as  respects  the  branch  or 
branches  of  the  government  which  should  be  the  de- 
positary of  the  ordinary  treaty-making  power,  he  said 
that  the  choice  was  between  vesting  this  power  "in 
Congress  generally,  in  the  two  Houses  exclusive  of  the 
President,  in  the  President  conjointly  with  them  or  one 
of  them,  or  in  the  President  alone." 

He  thus  states  the  reasons  which  determined  the 
choice  in  favor  of  the  President  and  Senate  (pages 
65,66): 

The  formation  of  a  treaty  often  requires  secrecy  and  dis- 
patch, neither  of  which  could  be  found  in  the  first  or  second 
mode,  and  a  contrary  plan  would  be  inconsistent  with  the 
usages  of  most  nations.  It  remained  then  either  to  vest  it 
in  the  President  singly,  or  to  unite  one  of  the  other  bodies 
with  him.  The  latter  was  obviously  preferable;  and  all 
that  remained  was  to  select  the  one  whose  conformation 
appeared  most  congenial  to  the  task.  The  Senate  is  a 
smaller  body,  and  therefore,  whenever   celerity  was  neces- 


310  The  American  Philosophy  of  Government 

sary,  the  most  likely  to  promote  it.  It  was  a  permanent 
body;  its  members,  elected  for  a  longer  time,  were  most 
likely  to  be  conversant  in  the  great  political  interests  which 
would  be  agitated,  and  perhaps  it  was  supposed  that,  as 
representatives  in  one  point  of  view  rather  of  the  states 
than  of  the  people,  a  federative  quality  appertained  to  them 
not  wholly  unconnected  with  the  nature  of  a  foreign 
compact. 

The  reasons  stated  by  Rawle  are  those  which  have 
always  been  understood  to  have  influenced  the  Consti- 
tutional Convention  in  vesting  the  treaty-making  power 
in  the  President  and  Senate.  These  reasons  were  no 
doubt  excellent  at  the  time  (though  now  steadily  grow- 
ing less  and  less  cogent)  and  fully  justified  the  Consti- 
tutional Convention  in  making  the  decision  which  it 
did  concerning  the  depositary  of  the  power  to  make 
ordinary  treaties.  But  these  reasons  did  not  have  in 
1787,  and  have  not  now,  any  application  to  that 
extraordinary  treaty-making  and  constitution-making 
power  which  is  exercised  when  an  independent  state 
enters  into  a  treaty  of  union.  In  this  extraordinary 
case,  there  is  no  need  for  either  secrecy  or  dispatch. 
The  need  is  for  publicity  and  for  slow  and  calm  delib- 
eration. There  is  no  reason  to  suppose  that  the  Senate 
will  be  more  "conversant  in  the  political  interests" 
involved  than  the  whole  Congress  of  the  United  States. 
Such  a  treaty  is  not  entered  into  primarily  by  the  states 
of  the  Union,  but  by  the  people  of  the  United  States 
primarily  and  by  the  states  incidentally,  and  the  Con- 
gress of  the  United  States  is,  by  the  law  of  nations  and 
the  Constitution,  the  guardian  of  the  vital  and  funda- 
mental interests  and  rights  of  the  people  of  the  United 
States  when  these  great  interests  are  affected  by  a 
constitutional  document  having  the  form  of  a  treaty, 
which  is  proposed  to  the  United  States  for  its  adoption. 


New  National  Processes  311 

The  effect  of  the  proposed  Covenant  will  be,  as  has 
been  above  shown,  to  change  our  relations  with  all  the 
states  which  shall  be  members  of  the  League  from  for- 
eign relations  into  external  domestic  relations.    If  this 
be  its  true  effect,  the  fact  will  be  that,  in  case  the 
United  States  shall  decide  to  enter  the  League,  it  will 
find  itself  without  proper  organs  to  enable  it  to  maintain 
its  rights  and  to  fulfil  its  duties  under  the  League  unless 
it  shall  previously  have  instituted  such  organs.     The 
State  Department  is  organized  to  deal  with  foreign 
relations ;  the  others  to  deal  with  internal  relations.    It 
is  not  generally  realized  that  we  have  always  had  some 
external   domestic   relations.     We   have   always   had 
external  domestic  territories  which  were  incorporated 
into  the  Union;  and  by  the  Spanish  War  we  acquired 
insular  countries  which  are  still  in  subordinate  and  de- 
pendent union  with  the  United  States.     Our  relations 
with  some  of  these  subordinately  united  countries  are 
in  charge  of  the  War  Department;  our  relations  with 
others  of  them  are  in  charge  of  the  Interior  and  Navy 
Departments.    The  use  of  these  departments  as  organs 
of  the  government  for  handling  these  kinds  of  external 
domestic  relations  serves  for  the  present  in  view  of  the 
powerlessness  of  these  subordinately  united  regions ;  but 
such  use  of  the  existing  departments  will  not  be  possible 
when  the  vast  volume  of  external  domestic  relations 
which  will  arise  from  the  moment  when  the  League 
comes  into  operation,   and  which  will  daily  grow  in 
extent  and  insistency,  is  poured  upon  the  United  States. 
In  order  to  meet  this  new  situation  successfully,  it  will 
be  necessary  to  be  prepared  in  advance  with  suitable 
organs  of  government,  under  penalty  of  the  vast  loss 
which  is  certain  to  be  caused  to  any  nation  in  every  case 
in  which  it  permits  itself  to  be  unprepared  to  meet  a 
great  emergency. 


312  The  American  Philosophy  of  Government 

A  question  which  the  United  States  must  face  and 
at  once  settle,  if  it  decides  to  enter  the  League,  there- 
fore, is :    What  kind  of  an  organ  is  necessary  to  handle 
successfully  the  new  external  domestic  relations  of  the 
United  States  with  the  other  states  of  the  League  ?    The 
answer  would  seem  to  be  that  there  must  be  a  new 
department  of  the  government  to  deal  with  these  rela- 
tions.    On  account  of  the  mixed  character  of  these 
relations,  it  seems  that  the  new  organ  or  department 
should  be  composed  of  the  heads  of  those  existing  de- 
partments which  deal  with  our  foreign  relations  and 
with  such  of  our  domestic  relations  as  have  an  inter- 
national aspect.    The  action  taken  by  Congress  during 
the  war  in  establishing  the  Council  of  National  Defence, 
would  seem  to  furnish  a  precedent  in  instituting  the 
new  organ.     When   the   United   States   entered  into 
association  with  the  powers  of  the  European  Entente, 
to  prosecute  the  war  against  the  Central  Powers,  its 
relations  with   the   Entente   Powers   became,  for  the 
period  of  the  war,  assimilated  to  external  domestic  rela- 
tions rather  than  to  foreign  relations.     In  order  to 
prosecute  the  war  successfully,  there  had  to  be  both 
national  concentration  and  international  cooperation. 
To  meet  the  situation  arising  from  the  existence  of  these 
new  relations,  there  was  established  by  act  of  Congress 
(Army  Appropriation  Act,  approved  August  29,  191 6, 
Sec.  2,  U.  S.  Statutes  at  Large,  Vol.  39,  page  619,  649, 
650)  a  Council  of  National  Defence  which  was  virtually 
a  department  of  the  government,  but  was  of  a  composite 
character.     The  function  of  the  new  department  was 
declared  to  be  *'the  coordination  of  industries  and  re- 
sources for  the  general  welfare."    It  was  provided  that 
there  should  be  two  parts  of  the  new  organ,  an  upper 
and  a  lower  body.     The  upper  body,  or  Council  of 
National  Defence  proper,  was  to  consist  of  the  Secre- 


New  National  Processes  313 

tary  of  War,  the  Secretary  of  the  Navy,  the  Secretary 
of  the  Interior,  the  Secretary  of  Agriculture,  the  Secre- 
tary of  Commerce  and  the  Secretary  of  Labor.  The 
lower  body  was  called  the  *  *  advisory  commission. ' '  The 
act  provided  that  it  was  to  be  composed  of  not  more 
than  seven  persons,  nominated  by  the  Council  and 
appointed  by  the  President,  and  that  each  of  these 
persons  should  ''have  special  knowledge  of  some  indus- 
try, public  utility,  or  the  development  of  some  natural 
resource,  or  be  otherwise  specially  qualified,  in  the 
opinion  of  the  Council,  for  the  performance  of  the 
duties"  of  the  department.  Provision  was  also  made 
for  the  appointment  of  expert  sub -commissions  and  of 
individuals  as  expert  investigators.  The  duties  of  the 
Council,  as  specified  in  the  act,  were,  as  follows: 

To  supervise  and  direct  investigations  and  make  recom- 
mendations to  the  President  and  the  heads  of  executive 
departments  as  to  the  location  of  railroads  with  reference 
to  the  frontier  of  the  United  States,  so  as  to  render  possible 
expeditious  concentration  of  troops  and  supplies  to  points 
of  defence;  the  coordination  of  military,  industrial  and 
commercial  purposes  in  the  location  of  extensive  highways 
and  branch  lines  of  railroad;  the  utilization  of  waterways; 
the  mobilization  of  military  and  naval  resources  for  defence ; 
the  increase  of  domestic  production  of  articles  and  materials 
essential  to  the  support  of  armies  and  of  the  people  during 
the  interruption  of  foreign  commerce;  the  development  of 
sea-going  transportation;  data  as  to  amounts,  location, 
method  and  means  of  production,  and  availability  of  mili- 
tary supplies;  the  giving  of  information  to  producers  and 
manufacturers  as  to  the  class  of  supplies  needed  by  the 
military  and  other  services  of  the  Government,  the  re- 
quirements relating  thereto,  and  the  creation  of  relations 
which  will  render  possible  in  time  of  need  the  immediate 
concentration  and  utilization  of  the  resources  of  the 
Nation. 


314  The  American  Philosophy  of  Government 

The  reason  why  this  statute  was  adopted  and  the 
new  organ  or  department  instituted  was  that  it  had 
been  found  by  experience  that  the  external  domestic 
relations  of  the  United  States  with  its  associates  during 
the  war  could  be  handled  successfully  only  by  a  new 
department  of  the  government  adapted  to  bring  about 
the  requisite  national  concentration  and  international 
cooperation.  In  order  to  cooperate  in  a  military  asso- 
ciation with  other  states,  the  United  States  found  it 
necessary  to  visualize  itself  and  to  act,  as  a  unit  of  a 
union,  for  producing  and  placing  in  the  field  an  army 
and  navy  provided  with  adequate  food,  shelter  and 
munitions  of  war,  so  long  as  the  war  should  last. 

Peaceful  cooperation  with  other  states  will  also  re- 
quire the  United  States  to  visualize  itself  and  to  act 
permanently,  as  a  unit  of  a  union  for  producing  and 
placing  in  the  field  an  army  of  organizers  and  workers 
provided  with  adequate  food,  shelter,  and  the  appur- 
tenances of  civilization  adapted  to  the  pursuit  of  hap- 
piness, for  utilizing  the  materials  and  forces  of  nature 
for  human  benefit  and  equitably  distributing  the  prod- 
uct among  the  states,  peoples  and  individuals  of  the 
world.  In  order  to  deal  successfully  with  these  new 
and  vast  external  domestic  relations  which  will  arise 
under  a  union  which,  like  the  one  proposed,  is  "to  pro- 
mote international  cooperation  and  to  achieve  inter- 
national peace  and  security,"  it  will  be  necessary,  it 
would  seem,  to  institute  by  act  of  Congress,  a  new 
organ  or  department  of  the  government,  based  on  the 
principles  of  the  Council  of  National  Defence.  The 
new  department  might  perhaps  be  called  ''The  National 
Council  of  International  Cooperation."  It  might  be 
composed  of  the  Secretary  of  State,  as  chairman,  and 
the  Secretary  of  the  Interior,  the  Secretary  of  the 
Treasury,  the  Secretary  of  Agriculture,  the  Secretary 


New  National  Processes  315 

of  Commerce  and  the  Secretary  of  Labor.  The  same 
provision  for  the  appointment  of  the  expert  advisory 
commission  and  of  sub-commissions  and  expert  ad- 
visers and  investigators  should  undoubtedly  be  made. 
The  function  of  the  new  department  would  be  to  inves- 
tigate and  inform  itself  concerning  all  matters  falling 
within  the  jurisdiction  of  the  League  and  to  advise  the 
President  and  Congress  concerning  any  of  these  matters 
regarding  which  the  United  States  might  be  called  upon 
to  make  a  decision. 

The  underlying  principle  upon  which  to  base  the 
action  of  the  United  States,  in  establishing  such  a  new 
department  would  be  that  cooperative  life  is  an  art 
which  can  be  acquired  only  by  study  and  experience. 
It  is  a  fact  of  general  knowledge  that  only  persons  and 
nations  of  high  attainments  in  intelligence  and  con- 
scientiousness can  appreciate  the  reasons  and  motives 
of  enlightened  self-interest  which  form  the  basis  of  the 
cooperative  philosophy  and  actually  do  what  coopera- 
tion requires.  The  units  of  a  cooperative  society  must 
all  be  equally  well-informed,  intelligent  and  conscien- 
tious. International  cooperation  is  impossible  except 
by  intelligent  and  conscientious  nations,  each  of  which 
has  its  own  organ  of  investigation  and  judgment  deal- 
ing with  the  affairs  of  the  world  in  all  their  phases  and 
acting  as  adviser  to  its  executive  and  its  legislature. 

The  institution  of  such  a  department  as  above  out- 
lined, contemporaneously  with  the  entry  of  the  United 
States  into  any  super-union,  is  dictated  not  merely  by 
principle.  It  is  enjoined  upon  us  also  by  considerations 
of  prudence.  The  proposed  Covenant,  or  any  other 
similar  super-constitution,  if  adopted,  will  establish  a 
body  in  the  world  which,  even  though  given  only  ad- 
visory powers,  will  exercise  a  great  influence.  Experi- 
ence proves  that  such  an  influence  will  tend  to  become 


3i6  The  American  Philosophy  of  Government 

actual  political  power.  One  has  only  to  remember  the 
influence  and  power  which  the  Roman  Papacy  has  had 
and  still  has  in  the  affairs  of  the  world,  and  that  which 
great  newspapers,  like  the  London  Times  of  a  half- 
century  ago,  have  exercised  in  international  politics,  to 
realize  that  advisory  power  in  a  person  or  personality 
of  acknowledged  leadership,  especially  if  accompanied 
with  the  power  of  investigation  and  publication,  must 
be  classed,  in  its  actual  effect,  as  real  political  power. 
Against  even  the  advisory  action  of  a  body  recognized 
as  having  international  leadership,  each  nation  must 
be  prepared.  Each  nation  must  have  knowledge  of 
world  affairs  equal  to  that  of  the  body  sitting  at  Geneva, 
or  the  advice  of  Geneva  will  be  in  effect  the  command  of 
a  superior  to  an  inferior.  The  United  States,  in  particu- 
lar, must  be  prepared  for  the  new  emergency;  for,  if  it 
is  not  intellectually  prepared  to  meet  with  facts  and 
arguments  the  advice  emanating  from  Geneva,  its  geo- 
graphical location  may  lead  to  political  situations  in 
which  the  body  sitting  at  Geneva,  voicing  the  senti- 
ment of  Europe,  or  of  Europe  and  Asia,  may  succeed 
in  giving  advice  to  the  United  States  or  to  America 
which  will  in  fact  be  a  command.  Against  such  con- 
tingencies, provision  should,  it  seems,  be  made  at  the 
instant  the  United  States  decides  to  enter  into  the 
League,  if  it  does  so  decide.  To  delay  the  institution 
of  the  new  department  or  organ  would  tend  to  involve 
the  nation  in  a  maze  of  complications  caused  by  the 
attempt  of  the  existing  departments  to  deal  with  the 
new  relations.  It  seems  clear,  therefore,  that  the  ques- 
tion of  the  adoption  of  the  Covenant  and  of  the  insti- 
tution of  the  new  department  should  be  considered  and 
decided  together  so  that  the  moment  the  League  begins 
to  operate,  at  that  moment  the  new  department  of  the 
United  States  may  begin  also  to  operate.     The  prin- 


New  National  Processes  317 

ciple  that  "eternal  vigilance  is  the  price  of  liberty" 
evidently  applies  to  the  new  situation  presented  by  the 
proposal  to  enter  the  League,  in  all  its  phases,  present 
and  future. 


THE  MANDATARY  SYSTEM  UNDER  THE 

COVENANT  OF  THE  LEAGUE 

OF  NATIONS 


319 


THE  MANDATARY  SYSTEM  UNDER  THE 

COVENANT  OF  THE  LEAGUE 

OF  NATIONS 

Published  in  the  Proceedings  of  the  Academy  of  Political  Science, 
Columbia  University,  June  5,  191 9. 

THE  proposed  Covenant  of  the  League  of  Nations 
declares  in  its  preamble  that  the  object  of  the 

signatory  powers,  in  uniting  themselves  as  a 
League,  is  "to  promote  international  cooperation  and 
to  achieve  international  peace  and  security."  This 
universal  object  can  only  be  accomplished  by  the  League 
exercising  such  a  moral  influence  over  the  civilized 
states  external  to  it  and  such  an  advisory  or  actual 
control  over  all  the  backward  peoples  of  the  world,  or 
at  least  over  such  of  them  as  may,  by  common  consent 
of  the  members  of  the  League,  be  placed  under  its 
tutelage,  as  will  bring  about  a  universal  cooperative 
relationship  between  all  states  and  peoples. 

The  Covenant,  therefore,  properly  makes  provision 
for  these  two  classes  of  external  relations  of  the  League. 
In  Article  XVII  and  Article  I  arrangements  are  made 
for  settlement  of  disputes  between  the  League  and  its 
members  and  external  civilized  states  and  for  admitting 
such  states  into  the  League.  In  Article  XXII  and 
Article  I  arrangements  are  made  for  the  administration 
by  the  League  of  such  regions  inhabited  by  backward 
peoples  as  may  be  ceded  to  it  by  the  members  of  the 
League  having  claims  to  the  title  and  sovereignty  of 

ax  321 


322  The  American  Philosophy  of  Government 

the  regions,  and  for  admitting  to  membership  in  the 
League  any  backward  people  which  shall  have  attained 
the  position  of  "a  self-governing  colony"  of  the  League 
and  be  otherwise  qualified  for  membership. 

As  respects  those  regions  which  are  at  the  present 
time  colonies,  protectorates  or  dependencies  of  any  one 
of  the  civilized  states,  whether  the  state  is  a  member 
of  the  League  or  not,  the  Covenant  is  silent  except  that 
Article  I  makes  eligible  for  membership  in  the  League 
a  "self-governing  dominion  or  colony"  of  any  civilized 
state  which  is  otherwise  qualified. 

It  is  the  provisions  of  Article  XXII  relating  to  the 
administration  by  the  League  of  regions  inhabited  by 
backward  peoples  and  ceded  to  it  by  the  member 
states,  that  are  to  be  considered  under  the  title  "The 
Mandatary  System."  This  name  arises  from  the  fact 
that  under  the  system  estabHshed  by  this  Article,  a 
member  state  participating  in  the  tutelage  by  the 
League  of  the  backward  regions  ceded  to  it  is  required 
to  act  as  a  mandatary  on  behalf  of  the  League. 

The  paragraphs  of  Article  XXII  which  establish  the 
general  principles  of  this  new  system  and  determine 
the  original  territories  to  which  it  shall  be  applied,  are 
as  follows: 

To  those  colonies  and  territories  which  as  a  consequence 
of  the  late  war  have  ceased  to  be  under  the  sovereignty 
of  the  states  which  formerly  governed  them  and  which  are 
inhabited  by  peoples  not  yet  able  to  stand  by  themselves 
under  the  strenuous  conditions  of  the  modern  world,  there 
should  be  applied  the  principle  that  the  well-being  and 
development  of  such  peoples  form  a  sacred  trust  of  civiliza- 
tion and  that  securities  for  the  performance  of  this  trust 
should  be  embodied  in  the  Covenant. 

The  best  method  of  giving  practical  effect  to  this  prin- 
ciple is,  that  the  tutelage  of  such  peoples  should  be  entrusted 


The  Mandatary  System  323 

to  advanced  nations  who  by  reason  of  their  resources,  their 
experience,  or  their  geographical  position,  can  best  under- 
take this  responsibiHty,  and  who  are  wilHng  to  accept  it, 
and  that  this  tutelage  should  be  exercised  by  them  as  man- 
dataries on  behalf  of  the  League.    .    .    . 

In  every  case  of  mandate,  the  mandatary  shall  render  to 
the  Council  an  annual  report  in  reference  to  the  territory 
committed  to  its  charge. 

The  degree  of  authority,  control  or  administration  to  be 
exercised  by  the  mandatary  shall,  if  not  previously  agreed 
upon  by  the  members  of  the  League,  be  explicitly  defined 
in  each  case  by  the  Council. 

A  permanent  commission  shall  be  constituted  to  receive 
and  examine  the  annual  reports  of  the  mandataries  and  to 
advise  the  Council  on  all  matters  relating  to  the  observance 
of  the  mandates. 

It  is  noticeable  that  though  the  title  and  sovereignty 
of  the  regions  conquered  by  the  allied  and  associated 
powers  in  the  late  war  is  assumed  by  the  language  of 
the  provisions  quoted  to  be  in  the  League,  there  is  no 
formal  cession  or  conveyance  to  the  League  of  the 
claims  of  the  states  to  these  regions.  The  reason  for 
the  absence  of  formal  words  of  cession  seems  to  be 
this:  These  regions,  though  in  fact  each  of  them  was 
conquered  by  some  one  or*  a  few  of  the  allied  and 
associated  powers,  are,  nevertheless,  in  contemplation 
of  the  law  of  nations,  under  the  terms  of  the  alliance 
and  association,  the  joint  conquest  of  all;  and  the  mili- 
tary occupation  of  any  of  these  regions,  though  in  fact 
established  and  maintained  by  one  or  a  few  of  these 
powers,  inures  in  law  to  the  benefit  of  all  and  confers  no 
individual  sovereignty  upon  the  state  or  states  which 
actually  made  the  conquest  or  which  maintain  the 
military  occupation.  The  sovereignty  of  the  former 
sovereigns  of  these  territories  has,  as  the  Article  says, 


324  The  American  Philosophy  of  Government 

ceased,  and  the  sovereignty  of  these  regions  is  in  the 
allied  and  associated  powers  collectively.  When, 
therefore,  they  unite  themselves  into  a  League,  the 
League  is  regarded  by  them  as  succeeding  to  their 
collective  sovereignty  by  operation  of  law  and  by  their 
consent,  so  that  no  formal  cession  or  quit-claim  is 
necessary,  and  a  mere  recognition  of  the  passing  of 
their  collective  title  to  the  League  is  treated  as 
sufficient. 

The  exercise  by  the  League  of  the  sovereignty  over 
these  joint  conquests  of  the  aUied  and  associated 
powers,  as  their  successor,  by  operation  of  law  and  their 
consent,  is,  it  will  have  been  noticed,  subjected  by  the 
provisions  of  Article  XXII,  above  quoted,  to  "securi- 
ties" or  "safeguards"  which  the  Article  declares  to  be 
indispensable  and  "embodied  in  the  Covenant" — evi- 
dently intending  that  these  "securities"  or  "safe- 
guards" should  be  a  covenant  running  with  the  land, 
analogous  to  what  the  United  States  in  its  Ordinance 
for  the  Government  of  the  Northwest  Territory  of  1787 
called  "Articles  of  Compact,"  having  the  sanctity  of  a 
fundamental  constitution  of  the  regions  designated  and 
all  similar  regions  and  applying  to  these  regions  for 
all  futiire  time,  so  long  as  the  population  may  continue 
to  require  tutelage. 

The  first  of  these  safeguards  is,  that  the  sovereignty 
of  the  League  over  these  regions  shall  be  true  sover- 
eignty, that  is,  that  the  governmental  power  exercised 
by  the  League  over  the  backward  peoples  committed  to 
its  care  shall  be  exercised  as  a  "sacred  trust  of  civiliza- 
tion," in  order  to  promote  "the  well-being  and  develop- 
ment" of  the  peoples  governed.  There  is  thus  assured 
to  the  peoples  of  these  regions,  in  the  Lincolnian  phrase, 
government  of  and  for  the  people,  and  also,  so  far  as 
may    be   practicable,    by    the   people, — and,    in    the 


The  Mandatary  System  325 

Rooseveltian  phrase,  government  which  shall  help  the 
peoples  governed  to  help  themselves. 

The  second  of  these  safeguards  is,  that  the  League 
shall  administer  its  trust  for  the  tutelage  of  its  depen- 
dent regions  through  the  instrumentality  of  one  of  the 
civilized  states,  in  every  case  where  such  administra- 
tion is  possible.  Direct  administration  by  the  League 
is  not  prohibited  and  evidently  cannot  be,  since  the 
states  are  all  at  liberty  to  decline  to  act  for  it;  but 
administrative  tutelage  through  a  state  is  declared  to 
be  "the  best  method." 

The  system  of  mandatary  administration  is  safe- 
guarded in  various  ways, — ^first  of  all,  by  the  legal 
terms  descriptive  of  the  legal  obligations  assumed  by 
the  League  and  by  the  state  which  acts  for  it.  The 
League  is  described  as  the  ''trustee"  of  backward 
peoples  committed  to  its  charge,  and  the  state  which 
acts  for  it  is  described  as  its  "mandatary."  A  trustee, 
under  all  systems  of  law,  is  without  power  to  delegate 
his  trust ;  hence  the  League  is  by  necessary  implication 
prohibited  from  delegating  to  any  state  its  trustee 
sovereignty  over  backward  peoples  committed  to  its 
charge.  It  must  forever  retain  its  responsibility  as 
trustee  for  such  peoples.  Its  dealing  with  states  re- 
garding such  peoples  is  limited  to  appointing  one  of 
them  as  its  "mandatary," — that  is,  as  its  agent,  to  do 
in  its  behalf  what  the  League  may  deem  proper  in 
order  to  enable  it  to  perform  its  trust,  and  to  serve 
without  remuneration, — a  mandate  being  a  form  of 
agency  in  which  the  agent  acts  without  right  to  re- 
muneration or  profit,  though  without  liability  to  loss. 
There  is  thus  contained  in  the  term  "mandatary"  an 
implied  prohibition  against  exploitation  of  backward 
peoples  by  mandatary  states  or  their  citizens. 

Other  safeguards  for  the  faithful  execution  of  the 


326  The  American  Philosophy  of  Government 

trust  assumed  by  the  League  in  behalf  of  "civilization" 
— civilization  being  thus  personified  as  the  supreme 
trustee  of  all  backward  peoples — and  in  favor  of  back- 
ward peoples  placed  under  its  jurisdiction,  are  estab- 
lished in  the  provision  that  no  state  shall  be  eligible 
as  mandatary  of  the  League  except  one  which  is 
"advanced,"  and,  therefore,  presumably  honest;  which 
has  "resources,"  and  is,  therefore,  presumably  able  and 
willing  to  make  needful  advances  of  money  and  credit ; 
which  is  "experienced"  and,  therefore,  presumably  able 
to  succeed  in  its  tutorial  work;  and  which  has  an 
appropriate  "geographical  position,"  so  that  it  may 
presumably  do  the  work  most  conveniently  and  may 
have  an  interest  in  making  a  success  of  it.  Still  other 
safeguards  are,  that  the  mandate  shall  be  "explicit" 
respecting  the  "degree  of  authority"  to  be  exercised  by 
the  mandatary ;  that  the  mandatary  shall  make  annual 
reports  to  the  League;  and  that  it  shall  at  all  times  be 
under  the  surveillance  of  the  League  through  a  com- 
mission of  surveillance  appointed  by  the  League. 

There  are  paragraphs  of  Article  XXII  other  than 
those  above  quoted  containing  safeguards  which  es- 
pecially interest  the  backward  peoples,  since  they  de- 
termine the  regime  to  be  applied  to  each  according  to 
its  stage  of  development.  These  paragraphs  are  as 
follows : 

The  character  of  the  mandate  must  differ  according  to 
the  stage  of  the  development  of  the  people,  the  geographical 
situation  of  the  territory  and  other  circumstances. 

Certain  communities  formerly  belonging  to  the  Turkish 
Empire  have  reached  a  stage  of  development  where  their 
existence  as  independent  nations  can  be  provisionally  rec- 
ognized, subject  to  the  rendering  of  administrative  advice 
and  assistance  by  a  mandatary  until  such  time  as  they  are 
able  to  stand  alone.    The  wishes  of  these  communities  must 


The  Mandatary  System  327 

be  a  principal  consideration  in  the  selection  of  the  man- 
datary. 

Other  peoples,  especially  those  of  Central  Africa,  are  at 
such  a  stage  that  the  mandatary  must  be  responsible  for 
the  administration  of  the  territory  under  conditions  which 
will  guarantee  freedom  of  conscience  or  religion,  subject  only 
to  the  maintenance  of  public  order  and  morals,  the  prohi- 
bition of  abuses,  such  as  the  slave  trade,  the  arms  traffic 
and  the  liquor  traffic,  and  the  prevention  of  the  establish- 
ment of  fortifications  or  military  and  naval  bases  and  of 
military  training  of  the  natives  for  other  than  police  pur- 
poses and  the  defense  of  territory,  and  will  also  secure 
equal  opportunities  for  the  trade  and  commerce  of  other 
members  of  the  League. 

By  these  provisions  the  sovereignty  of  the  League  over 
these  regions  is  apparently  regarded  as  a  paramount 
sovereignty  or  overlordship ;  the  ordinary  sovereignty 
or  lordship  being  regarded  as  vested  in  the  people  under 
tutelage  when  it  is  of  the  first  grade,  and  in  the  man- 
datary state  when  the  people  is  of  the  second  grade. 
In  solving  the  legal  problems  of  the  future  which  may 
turn  upon  the  question  of  sovereignty  over  these  re- 
gions, it  will  apparently  be  necessary  to  resort  to  the 
principles  of  the  feudal  system.  The  League,  as  para- 
mount sovereign  and  overlord,  would  appear  to  have 
under  these  provisions,  the  sole  duty  of  protecting  from 
external  aggression  all  the  backward  regions  committed 
to  its  paramount  sovereignty;  the  mandatary  state,  as 
ordinary  sovereign  or  lord,  having  only  the  duty  of 
tutelage  or  education.  The  safeguards  provided  for 
peoples  of  the  second  grade  are  substantially  those 
established  for  such  peoples  by  the  action  of  the  Berlin 
African  Conference  of  1885  and  the  Brussels  African 
Conference  of  1890. 

The  remaining  paragraph  of  Article  XXII  other  than 


328  The  American  Philosophy  of  Government 

those  above  quoted,  concerns  a  class  of  peoples  under 
the  trusteeship  of  the  League  which  by  reason  of  their 
contiguity  to  the  mandatary  state  and  their  consequent 
manifest  destiny  to  be  incorporated  into  its  domestic 
body,  or  by  reason  of  their  insularity,  diminutiveness, 
or  other  peculiarities,  are  permitted  to  be  subjected  by 
the  League  and  the  mandatary  state  to  a  special 
regime.    The  words  of  this  paragraph  are  as  follows : 

There  are  territories,  such  as  Southwest  Africa,  and  cer- 
tain of  the  South  Pacific  Islands  which,  owing  to  the 
sparseness  of  their  population,  or  their  small  size,  or  their 
remoteness  from  the  centers  of  civilization,  or  their  geo- 
graphical contiguity  to  the  territory  of  the  mandatary,  and 
other  circumstances,  can  be  best  administered  by  the  man- 
datary as  integral  portions  of  its  territory,  subject  to  the 
safeguards  above  mentioned  in  the  interests  of  the  indige- 
nous population. 

In  the  cases  mentioned  in  the  above  paragraph,  the 
paramount  sovereignty  will  still,  of  course,  remain  in 
the  League  and  the  regions  specified  will  not,  in  con- 
templation of  the  law  of  nations,  constitute  an  integral 
part  of  the  territory  of  the  mandatary  state.  They  will 
simply  have  a  form  of  administration  similar  to  that 
which  they  would  have  if  they  were  integral  parts  of 
its  territory.  All  the  constitutional  safeguards  under 
the  constitution  of  the  mandatary  state  which  would 
apply  if  they  were  integral  parts  of  its  territory,  will 
be  appHcable  and  also  all  the  constitutional  safeguards 
provided  in  the  Covenant  which  are  for  the  benefit  of 
the  indigenous  population. 

The  Covenant,  it  will  have  been  noticed,  contains  no 
express  provisions  concerning  the  revocation  of  a  man- 
date given  by  the  League  to  a  state.  That  the  League 
has  this  power,  however,  there  can,  it  seems,  be  no 


The  Mandatary  System  329 

doubt.  A  mandate,  like  every  form  of  agency,  is 
revocable  at  the  election  of  the  principal.  The  author- 
ity given  to  the  League  by  the  Covenant  to  appoint 
and  commission  states  as  its  mandataries  and  to 
supervise  the  states  which  have  accepted  its  mandate, 
would  seem  necessarily  to  imply  the  power  to  revoke 
the  mandate.  That  the  League  will  not  revoke  a 
mandate  without  just  cause  and  without  a  judicial 
determination,  is  to  be  assumed. 

From  the  foregoing  survey  of  the  safeguards  provided 
in  the  Covenant  to  insure  the  harmonious  correlation 
of  all  the  conflicting  interests  which  will  exist  concern- 
ing backward  peoples  committed  to  the  charge  of  the 
League  and  administered  by  it  through  a  state  as  tutor, 
it  is  evident  that  these  safeguards  are  inadequate  in 
one  important  respect,  namely,  as  respects  the  prin- 
ciples to  be  observed  in  the  selection  of  the  mandatary 
state.  All  that  the  Covenant  says  on  this  subject  is 
that  those  states  only  shall  be  eligible  to  receive  a 
mandate  of  the  League  which  are  "advanced,"  which 
have  "resources,"  and  "experience,"  and  which  have 
a  "convenient  geographical  position."  These  safe- 
guards are  all  good,  but  in  view  of  existing  international 
conditions  and  the  history  of  the  dealings  of  civilized 
states  with  backward  regions,  they  are  clearly  not 
sufficient.  There  must  also  be  rules  making  states  in- 
eligible in  certain  cases,  if  "the  mandatary  system"  is 
to  become,  in  fact,  a  part  of  the  great  plan  "to  promote 
international  cooperation  and  to  achieve  international 
peace  and  security."  As  rules  of  ineligibility  needful 
to  effectuate  this  prime  object  of  the  League,  the  fol- 
lowing may  be  suggested: 

First,  that  a  conqueror  state  should  be  ineligible  for 
a  mandate  of  the  League  for  the  tutelage  of  conquered 
regions  unless  the  war  in  which  the  conquest  was  made 


330  The  American  Philosophy  of  Government 

was  waged  on  the  declared  issue  of  misgovernment  of 
the  indigenous  population  by  the  vanquished  state.  A 
civilized  state  which  in  a  war  with  another  civilized 
state  fought  on  issues  of  any  other  kind  shall  have 
seized  and  occupied  the  colonies  or  dependencies  of  its 
opponent  inhabited  by  backward  peoples  should  not 
be  permitted  to  receive  benefits  from  its  military 
seizure  and  occupation  of  these  backward  regions  by 
turning  them  over  to  the  League  and  receiving  them 
back  as  its  mandatary.  To  permit  a  conqueror  state 
to  be  eligible  for  a  mandate  in  such  a  case  must  neces- 
sarily tend  toward  the  perpetuation  of  the  old  rule, 
so  prolific  of  war,  that  backward  regions  are  pawns  in 
the  game.  At  the  Berlin  African  Conference  of  1885, 
the  United  States  earnestly  urged  the  establishment 
by  the  conference  of  a  rule  of  ineligibility  such  as  is 
here  suggested  as  respects  Middle  Africa. 

Second,  that  a  state  which  has  an  extensive  domestic 
territory  or  an  extensive  external  domain  should  be 
ineligible  for  a  mandate.  To  permit  a  member-state 
of  the  League  which  has  a  domestic  territory  far 
exceeding  in  extent  the  average  territory  of  the  mem- 
ber-states, or  which  already  holds  and  governs  as  its 
colonies,  protectorates,  or  dependencies  so  large  a  part 
of  the  world  as  to  give  it  a  monopoly  in  fact  of  the  eco- 
nomic life  of  the  world  and  a  virtual  world  dominion, 
to  be  eligible  to  accept  a  mandate  of  the  League  for 
the  tutelage  of  additional  regions  would  tend  to  in- 
crease the  opportunities  of  such  a  state  for  world-mo- 
nopoly and  world-dominion  and  would  also  tend  to 
enable  the  state  to  control  the  League  for  its  own 
benefit.  The  "mandatary  system"  is  capable  of  be- 
ing used  so  as  to  have  a  very  considerable  effect  in 
bringing  about  an  equalization  between  the  member- 
states  of  the  League  and  should  undoubtedly  be  used, 


The  Mandatary  System  331 

so  far  as  practicable,  to  effect  this  very  desirable 
result. 

Third,  that  a  member-state  of  any  kind  of  a  federal 
unity  existing  within  the  League  should  be  ineligible 
for  a  mandate.  To  permit  a  state  which  is  a  member 
of  a  federal  state,  or  of  a  federal  empire,  or  federal 
commonwealth,  to  be  eligible  for  a  mandate  of  the 
League  would  either  place  such  a  state  in  opposition 
to  the  federal  state,  empire,  or  commonwealth  of  which 
it  is  a  member,  or  if  the  composite  state  assented, 
woiild  enable  the  composite  state  indirectly  to  obtain 
the  mandate  for  itself. 

It  should  also  be  provided  in  the  Covenant,  as  an 
additional  and  general  safeguard  to  the  whole  "man- 
datary system,"  that  the  selection  of  mandataries  of 
the  League  should  be  made  only  in  times  of  peace, 
through  a  judicial  proceeding,  in  which  the  qualifica- 
tions of  every  state  will  be  weighed  on  its  merits;  in 
which  the  tribunal  charged  with  making  the  selection 
will  be  prohibited  from  considering  any  claim  based  on 
conquest,  military  occupation,  or  other  right  of  war; 
and  in  which  there  will  be  taken  into  consideration  and 
brought  into  harmony  all  the  various  interests  involved 
— those  of  the  backward  peoples,  those  of  the  League, 
those  of  the  states  eligible  for  mandates  and  willing  to 
act,  and,  above  all,  the  general  interests  of  civilization 
and  humanity.  The  League,  in  the  exercise  of  its 
"trusteeship"  in  behalf  of  "civilization"  for  backward 
peoples,  stands  in  the  world  in  a  position  analogous  to 
that  which  the  chancellor  or  the  probate  judge  holds 
in  the  state  when  he  is  sitting  to  determine  the  matter 
of  appointment  of  a  curator  for  a  person  not  of  sound 
mind,  or  of  a  guardian  for  an  infant,  in  order  that,  for 
the  benefit  of  the  backward  person  himself,  of  his  rela- 
tives, of  the  state,  and  of  the  civiHzed  world  generally, 


y 


332  The  American  Philosophy  of  Government 

a  tutorial  and  corrective  influence  may  be  exercised,  so 
as  to  restore  the  unsound  mind  to  a  normal  state  of 
soundness  or  to  develop  the  immature  mind  to  a  sound 
maturity.  Such  proceedings  are  in  all  systems  of  law 
regarded  as  of  the  highest  importance  to  the  sound  life 
of  the  community  and  are  surrounded  by  all  conceiv- 
able safeguards.  The  principles  of  the  private  law  con- 
cerning curatorship  and  guardianship  form  a  proper 
source  from  which  to  derive  the  principles  and  practices 
of  the  "mandatory  system"  by  analogy,  so  that  it  shall 
fit  into  the  general  plan  of  the  League  and  enable  the 
League  to  effectuate  its  object. 

However  novel  the  ''mandatary  system"  may  appear 
to  those  unfamiliar  with  international  law  and  colonial 
science,  it  contains  no  novelty  for  publicists.  Its  adop- 
tion was  an  inevitable  next  step  in  a  long  course  of 
evolution  beginning  with  the  action  of  the  Congress  of 
Vienna  in  1 814.  At  that  Congress  it  was  resolved  that 
all  the  eight  members  of  the  Congress,  whether  possess- 
ing colonies  in  Africa  or  not,  were  entitled  to  partici- 
pate in  the  consideration  of  measures  for  cooperative 
action  in  abolishing  the  African  slave  trade,  because, 
as  they  held,  the  subject  of  the  relations  of  civi- 
lized states  with  backward  peoples  was  one  affecting 
public  morals  and  humanity,  which  was  to  be  deter- 
mined by  all  the  powers  collectively.  From  this  action, 
the  necessary  conclusion,  which  was  soon  made,  was, 
that  the  backward  peoples  of  the  world  are,  by  the 
law  of  nations,  under  a  curatorship  or  guardianship  of 
all  civilized  states,  collectively  and  individually.  This 
latter  principle  was  applied,  or  at  least  was  purported 
to  be  applied,  at  various  times  during  the  century  pre- 
ceding the  Great  War,  in  the  dealings  of  the  Concert  of 
Europe  with  Turkey,  Greece,  Egypt,  the  Balkan  States 
and  Morocco ;  in  the  dealings  of  the  Concert  of  Europe 


The  Mandatary  System  333 

and  the  United  States  with  Japan  and  China;  and 
especially  in  the  dealings  of  the  Concert  of  Europe,  the 
United  States  and  the  Oriental  Powers  with  Middle 
Africa  at  the  Berlin  African  Conference  in  1885  and 
the  Brussels  African  Conference  in  1890.  The  League 
of  Nations,  as  the  trustee  in  behalf  of  civilization,  in 
favor  of  backward  peoples,  is  the  natural  successor  of 
these  various  "concerts"  of  civiHzed  states  which  from 
time  to  time — with  little  success,  it  must  be  admitted — 
have  attempted  to  represent  "civilization"  and  bring 
about  a  cooperative  relationship  between  the  civilized 
and  the  backward  peoples.  Condominion  of  backward 
peoples  by  two  or  more  states  was  proved  to  be  im- 
possible in  the  case  of  Egypt  and  the  Samoan  Islands; 
and,  for  a  quarter  of  a  century  preceding  the  Great  War, 
it  had  been  recognized  that  the  best  method  of  tutelage 
of  backward  peoples  was  for  all  the  civilized  states  col- 
lectively to  assent  to  some  one  civilized  state  placing 
itself  in  care  of  each  backward  people,  and  for  them  all 
collectively,  acting  by  way  of  "concert"  to  hold  that 
state  responsible  as  their  mandatary  to  perform  the 
trusteeship  of  civilization  for  the  tutelage  of  the  back- 
ward peoples.  From  acting  by  way  of  "concert"  to 
acting  as  now  proposed,  by  way  of  "league"  was  but  a 
short  step,  and  one  which  was  sooner  or  later  certain 
to  be  taken. 

The  question  of  the  desirability  of  a  state  accepting 
a  mandate  of  the  League  under  the  Covenant  in  its 
present  form,  has  been  much  discussed.  This  is  really 
a  question  whether  the  general  safeguards  of  the  League 
which  are  now  provided  by  the  Covenant,  are  adequate 
to  prevent  perversion;  and  whether,  even  if  they  are 
so  on  paper,  the  League  is  likely  to  be  perverted  in 
fact,  and  the  Covenant  made  an  instrument  of  world 
monopoly  and  world  domination  by  one  state  or  by  a 


334  The  American  Philosophy  of  Government 

group  of  states.  Under  the  Covenant  in  its  present 
form  the  whole  power  of  the  League  is  concentrated 
in  the  Council  and  Assembly — virtually  in  the  Council. 
These  organs  of  the  League  have  power  not  only  to 
advise  concerning  international  cooperation  in  peaceful 
activities,  but  also  to  advise  and  superintend  the  coer- 
cion of  a  member-state  by  the  other  states  so  as  to 
compel  it  to  desist  from  alleged  anti-cooperative  action 
and  make  reparation  therefor.  The  peace  powers  and 
the  war  powers  of  the  League  are  thus  in  the  same 
hands.  A  state  which,  on  account  of  its  geographical 
position  or  for  other  reasons  is  in  danger  of  having 
this  war-power  of  the  League  turned  against  it  on 
grounds  deemed  adequate  by  these  organs  of  the  League 
acting  at  their  discretion,  might  well  decline  to  accept 
a  mandate  of  the  League  or  any  other  international 
responsibility  likely  to  weaken  its  defensive  power.  It 
would  seem  that  the  Council  and  Assembly  of  the 
League  should  be  confined  to  advising  the  member- 
states  concerning  peaceful  cooperative  action,  and  that 
when  it  appears  to  be  necessary  to  coerce  a  state  for 
anti-cooperative  action,  this  question  should  be  deter- 
mined by  an  extraordinary  judicial  assembly  of  the 
other  states  summoned  in  a  predetermined  manner,  and 
that  this  same  extraordinary  assembly  should,  in  case 
it  decides  adversely  to  the  state  charged  with  anti-co- 
operative action,  advise  and  control  the  necessary  joint 
constabulary  and  corrective  measures  taken  by  the 
states  thus  allied  against  the  state  adjudged  to  be  an 
international  wrongdoer.  Assuming  that  the  Covenant 
will,  at  the  time  it  goes  into  effect,  be  adequate  to  insti- 
tute a  League  which  will  in  other  regards  accomplish 
the  declared  object  of  promoting  international  co- 
operation and  achieving  international  peace  and  secu- 
rity, it  would  seem  that  the  "mandatary  system"  would 


The  Mandatary  System  335 

be  a  fitting  feature  of  the  general  plan,  and  that,  if 
there  could  be  incorporated  in  the  Covenant  the  addi- 
tional safeguards  of  the  system  above  outUned,  there 
would  be  reason  to  hope  it  might  be  successful. 

That  there  would  be  much  risk  and  little  honor  in 
the  assumption,  by  any  of  the  powers  which  are  the 
conquerors  in  the  late  war,  of  the  mandate  of  the  League 
over  the  backward  conquered  regions  to  which  alone 
the  Covenant  in  its  present  form  relates,  seems  certain. 
The  history  of  all  civilized  states  in  deaHng  with  back- 
ward peoples  is  deeply  stained  with  "atrocities,"  and 
comparison  cannot  now  be  admitted — especially  com- 
parison based  on  interested  testimony  gathered  during 
the  war.  An  examination  of  the  literature  of  the  world 
before  the  war,  will,  it  is  believed,  show  that  the  pub- 
Heists  of  the  powers  which  are  now  in  the  position  of 
victors,  found  no  fault  with  the  title  of  the  powers 
which  are  now  in  the  position  of  vanquished,  to  the 
backward  regions  under  their  jurisdiction;  and  that  in 
estimating  the  comparative  value  to  civilization  of  the 
colonizing  activities  of  the  various  powers,  colonial 
experts  recognized  as  highly  valuable  the  work  done 
by  the  now  vanquished  powers.  The  case  of  Turkey  is, 
of  course,  that  of  a  sick  man,  whose  sickness  has  been 
made  worse  by  the  conflicting  ministrations  of  his 
alleged  physicians.  A  state  accepting  a  mandate  for 
the  care  of  such  a  patient  would  need  to  be  assured  that 
the  physicians  previously  in  charge  of  the  case  would 
voluntarily  and  entirely  withdraw. 

If  the  "mandatary  system"  should  prove  successful 
in  the  case  of  the  backward  peoples  committed  to  the 
care  of  the  League  of  the  Covenant,  it  would  doubtless 
gradually  be  extended  to  include  the  colonies,  protec- 
torates and  dependencies  of  civilized  states  inhabited 
by  backward  peoples.    Each  such  state  which  desired 


336  The  American  Philosophy  of  Government 

to  act  honestly  as  respects  the  backward  peoples  de- 
pendent upon  it,  would  have  a  strong  motive  to  re- 
linquish its  dependencies  to  the  League  in  case  it  could 
receive  them  back  as  mandatary,  for  the  protection  of 
these  regions  against  external  aggression  would  then 
fall  upon  the  League.  The  vast  navies  now  kept  up 
by  colonizing  states  as  "insurance"  against  the  loss  of 
colonies  could  then  be  dispensed  with,  and  unwillingness 
of  a  colonizing  state  to  assume  toward  its  colonies  the 
relationship  of  mandatary  of  the  League  would  give 
rise  to  the  suspicion  that  it  desired  to  exploit  the  back- 
ward peoples  under  its  control  and  required  its  navy  to 
insure  freedom  from  interference  in  its  work  of  exploi- 
tation. 

The  "mandatary  system"  is,  it  is  evident,  a  necessary 
part  of  the  new  system  in  which  the  civilized  states 
recognize  themselves  as  having  with  each  other  social 
relations  of  a  legal  nature,  as  well  as  those  purely  con- 
tractual and  economic  relations  with  which  interna- 
tional law  proper  is  concerned.  There  thus  seems  to 
be  coming  into  existence,  through  the  establishment  of 
this  "society  of  the  civilized  states,"  as  The  Hague 
Conferences  called  it,  by  international  convention,  a 
new  division  of  the  general  public  law,  distinct  from 
international  law  proper — a  social  law  of  nations,  of 
which  the  "mandatary  system"  forms  a  part. 


THE  SHANTUNG  QUESTION  AND 
SPHERES  OF  INFLUENCE 


337 


T 


THE  SHANTUNG  QUESTION  AND 
SPHERES  OF  INFLUENCE 

Reprinted  from  The  Nation,  September  20,  19 19. 

'HE  Shantung  Question  arises  out  of  the  following 
provision  of  the  Peace  Treaty: 


Germany  renounces,  in  favor  of  Japan,  all  her  rights, 
title  and  privileges — particularly  those  concerning  the  terri- 
tory of  Kiaochow,  railways,  mines,  and  submarine  cables — 
which  she  acquired  in  virtue  of  the  treaty  concluded  by  her 
with  China  on  March  6,  1898,  and  of  all  other  arrangements 

relative  to  the  Province  of  Shantung. 

> 

The  "rights,  title  and  privileges'*  in  question  are 
exclusively  those  which  Germany  had,  on  China's  do- 
mestic territory  and  within  the  sphere  of  its  sovereignty, 
by  "treaty"  with  China  and  by  "arrangements"  with 
the  other  states  having  influence  in  China. 

The  treaty  of  March  6,  1898,  between  China  and 
Germany,  as  published  at  Shanghai  in  1908  by  the 
Chinese  (British-controlled)  Imperial  Customs  Office, 
was  composed  of  a  preamble,  three  parts,  and  ratifica- 
tion clauses  and  signatures.  The  first  part  is  headed 
"Lease  of  Kiaochow,"  the  second,  "Railroad  and  Min- 
ing Concessions,"  and  the  third,  "Priority-Rights  in 
the  Province  of  Shantung." 

In  the  first  sentence  of  the  preamble  it  was  stated 
that  the  incident  at  the  mission  station  in  the  prefecture 
Tsaochoufu  in  Shantung  had  been  settled  at  the  time 

339 


340  The  American  Philosophy  of  Government 

the  treaty  was  made.  This  incident  was  the  murder  of 
two  German  Roman  Catholic  missionaries,  about  four 
months  previously,  at  the  town  which  was  the  birthplace 
of  Confucius,  by  Chinese  political  rioters  who  were 
members  of  anti-foreigner  societies.  Germany  sent 
ships  to  Kiaochow  Bay  and  landed  marines,  holding 
the  bay  as  security  for  reparation. 

The  facts  concerning  the  incident  and  its  settlement 
are  given  in  the  correspondence  between  Sir  Claude 
MacDonald,  the  British  Minister  to  China,  and  Lord 
Salisbury,  published  in  the  Parliamentary  Papers.  The 
murder  of  the  German  priests,  as  a  political  anti- 
Christian  and  anti-foreigner  act,  and  the  complicity  of 
the  Governor  of  Shantung,  were  conclusively  proved  by 
the  testimony  of  a  third  German  priest  who  was 
attacked  with  the  two  others  and  who  escaped.  The 
naval  action  of  Germany  relieved  Great  Britain  from 
carrying  out  a  threat  to  send  a  punitive  expedition  into 
Shantung,  as  is  shown  by  the  following  extract  from  a 
letter  of  Sir  Claude  MacDonald  to  Lord  Salisbury,  of 
December  i,  1897: 

During  the  summer  there  were  prevalent  in  this  province 
rumors  of  the  kidnapping  of  children  of  foreigners,  which 
produced  much  excitement,  and  placed  the  missionaries  in 
the  interior  in  great  danger.  The  Governor,  in  spite  of 
much  pressure,  did  nothing  to  suppress  these  rumors,  and 
even  by  his  attitude  gave  them  tacit  encouragement.  After 
repeatedly  calling  the  Yamdn's  attention  to  his  conduct,  I 
was  at  last  obliged  to  desire  them  to  warn  him  that  if  any 
serious  incident  occurred  as  a  result  of  his  anti-foreign 
spirit,  he  would  find  himself  in  jeopardy.  This  I  did  in  a 
note  so  long  ago  as  the  27th  of  July,  and  the  result  was, 
according  to  a  report  from  His  Majesty's  council  at  Chef 00, 
that  active  measures  were  at  length  taken  to  check  the 
rumors  and  the  ferment  thereupon  subsided. 


Shantting  341 

It  is  not  possible  at  present  to  ascertain  whether  this 
agitation  has  indirectly  led  to  the  present  outrage,  but  the 
Governor's  attitude  has  been  such  as  to  induce  full  approval 
of  the  German  demand  for  his  dismissal. 

That  the  sending  of  the  three  small  German  cruisers 
from  Shanghai,  where  they  had  been  lying,  to  Kiaochow 
Bay,  had  the  acquiescence,  if  not  the  approval,  of 
Great  Britain,  which,  then  as  now,  controlled  the  coasts 
of  China  from  Hong-Kong,  is  shown  by  the  following 
extract  from  the  same  letter: 

If  the  German  occupation  of  Kiaochow  is  only  used  as  a 
leverage  for  obtaining  satisfactory  reparation,  .  .  .  for 
the  murder  of  German  missionaries,  the  effect  on  the  secu- 
rity of  our  own  people  will  be  of  the  best. 

If,  on  the  other  hand,  the  German  object  is  to  secure 
Kiaochow  as  a  naval  station  under  cover  of  their  demands 
for  reparation,  it  is  by  no  means  clear  that  their  acquisition 
of  it  will  prejudice  our  interests. 

The  terms  of  the  reparation  settlement  were  agreed 
upon  about  two  months  before  the  treaty  was  signed. 
The  Governor  was  degraded.  The  money  reparation 
included  compensation  to  the  relatives  of  the  murdered 
priests,  damages  for  injury  to  the  mission  buildings, 
and  a  contribution  to  the  building  of  mission  chapels 
near  the  scene  of  the  murder.  The  reparation-money 
was  paid  to  the  Roman  Catholic  authorities.  Germany 
obtained,  for  itself  and  all  foreign  states,  an  Imperial 
tablet  condemnatory  of  the  anti-Christian  and  anti- 
foreigner  proceedings.  The  next  year  the  Vatican 
granted  to  Germany  the  ecclesiastical  protectorate  over 
Roman  Catholics  in  Shantung;  this  religious  sphere  of 
influence  being  subtracted  from  that  of  France,  which 
had  theretofore  extended  over  all  China. 


342  The  American  Philosophy  of  Government 

The  treaty  stated  that  the  Chinese  Government  re- 
garded the  occasion  of  the  amicable  closing  of  the  repa- 
ration settlement  as  an  appropriate  one  for  giving  a 
concrete  evidence  of  its  grateful  recognition  of  friend- 
ship shown  to  it  by  Germany.  Though  repayment  of 
the  social  obligation  is  thus  put  forward  as  the  main 
inducement  on  the  part  of  China  in  making  the  treaty, 
it  is  also  stated,  as  further  inducement,  that  China  is 
desirous  of  "increasing  the  military  preparedness  of 
the  Empire."  The  inducement  on  Germany's  part  is 
declared  to  be  its  desire  to  have,  ''like  other  powers,  a 
place  on  the  Chinese  coast,  under  its  own  jurisdiction" 
— which  desire  China  declares  to  be  "justifiable."  The 
inducement  on  the  part  of  both  Germany  and  China  is 
declared  to  be  a  "mutual  and  reciprocal  desire  further 
to  develop  the  economic  and  commercial  relations  be- 
tween the  citizens  of  the  two  states." 

The  treaty  granted  an  extraterritorial  port  privilege 
within  the  area  including  Kiaochow  Bay  and  its  envi- 
rons— a  land-and-water  area  about  fifteen  miles  square 
— together  with  an  extraterritorial  foreign-settlement 
privilege  on  the  shore  of  Kiaochow  Bay.  This  area  was 
leased  to  Germany  for  ninety-nine  years  "for  the  repair 
and  equipment  of  ships,  for  the  storage  of  materials 
and  provisions  for  the  same,  and  for  other  arrangements 
connected  therewith."  It  was  provided  that  Germany 
should  "construct,  at  a  suitable  time,  on  the  leased 
territory,  fortifications  for  the  protection  of  the  build- 
ings and  the  defense  of  the  entrance  to  the  harbor." 

The  German  words  concerning  the  leasehold  grant 
were  uherldsst  pachtweise  vorldufig  auf  qq  Jahre.  A 
literal  translation  of  this  phrase  is  "grants  according  to 
the  analogy  of  leases  [in  German  law],  as  a  provisional 
or  interlocutory  measure  (vorldufig)  for  ninety-nine 
years."     It  seems  probable  that  by  the  use  of  the  word 


Shantung  343 

vorldufig,  it  was  intended  by  the  parties  to  make  the 
lease  subject  to  the  terms  of  the  international  entente 
concerning  spheres  of  influence  in  China,  not  only  as 
that  entente  then  existed  but  also  as  it  should  be  varied  in 
the  future  by  mutual  agreement  of  China  and  the  powers. 

It  was  also  provided  that  *'in  order  to  avoid  the  pos- 
sibility of  conflicts,  the  Imperial  Chinese  Government 
will  abstain  from  exercising  rights  of  sovereignty 
in  the  ceded  territory  during  the  term  of  the  lease." 
China  had  thus  the  paramount  sovereignty  over  the 
leased  territory,  and  Germany  a  sovereignty  subordi- 
nate to  that  of  China  and  limited  by  the  terms  of  the 
lease.  China  reserved  to  its  citizens  and  shipping 
within  the  leased  area  the  same  rights  as  the  citizens 
and  shipping  of  other  states. 

Inasmuch  as  Germany's  leasehold  territory  was  a 
part  of  the  coast  border  of  China,  it  was  agreed  that 
Germany  should  take  no  action  within  that  territory 
which  would  interfere  with  the  unity  of  the  Chinese 
tariff.  Germany  had  thus  the  option  to  make  a  desig- 
nated port  of  its  leased  territory  a  free  port — which 
she  did — or  to  collect  there  the  Chinese  tariff  and  pay 
it  to  China. 

In  order  that  the  relationship  between  Germany  and 
China  might  be  continued  in  case  Germany  should  see 
fit  to  resign  its  leasehold  privileges,  it  was  provided 
that  "should  Germany  at  some  future  time  express  the 
wish  to  restore  Kiaochow  Bay  to  China  before  the 
expiration  of  the  lease,  China  agrees  to  refund  to  Ger- 
many the  expenditure  she  has  incurred  at  Kiaochow, 
and  to  cede  to  Germany  a  more  suitable  port." 

As  incidental  to  the  necessity  of  obtaining  an  ade- 
quate water-supply  for  the  leased  territory  and  en- 
abling it  to  be  defended  without  violating  China's 
sovereignty,  a  zone  of  land  thirty  miles  wide  adjoin- 


344  The  American  Philosophy  of  Government 

ing  the  leased  territory  was  by  the  treaty  placed  under 
a  kind  of  partnership  sovereignty  (vereinbart) .  Within 
this  zone,  China  expressly  retained  full  sovereignty,  but 
agreed  *'to  abstain  from  taking  any  measures,  or  issuing 
any  ordinances  therein,  without  the  previous  consent 
of  the  German  Government,  and  especially  to  place 
no  obstacle  in  the  way  of  any  regulation  of  the  water- 
courses which  may  prove  to  be  necessary." 

The  second  part  of  the  treaty,  headed  * '  Railroad  and 
Mining  Concessions,"  was  concerned  solely  with  two 
specifically  described  railroad-and-mining  concessions  in 
Shantung.  These  were  by  the  treaty  definitely  allotted 
to  German-Chinese  corporations  to  be  formed  for  the 
purpose,  in  which  the  German  and  Chinese  stockholders 
were  to  have  equal  rights  and  proportional  representa- 
tion in  the  directorate.  Provisions  were  made  to  assure 
the  protection  of  the  German  personnel  of  the  working 
staff ;  and  it  was  required  that  the  work  should  be  done, 
and  the  concessions  operated,  in  conformity  with  the 
general  regulations  of  China.  The  two  railroads  formed 
a  branch  to  connect  Kiaochow  Bay  with  the  proposed 
trunk  line  from  Peking  to  Canton.  This  trunk  line, 
when  extended  southward  to  the  British  railroad  system 
in  Burma  and  the  French  system  in  Indo-China,  was  to 
form  a  part  of  the  southern  Peking-to-Paris  line  which 
was  to  compete  with  the  Peking-to-Paris  line  via  the 
Manchurian  and  the  Russian  Trans-Siberian  Railways. 
As  respects  the  section  of  this  trunk  line  in  Shantung, 
the  treaty  gave  no  special  concession  to  German  or 
German-Chinese  corporations.  The  mining  privileges 
within  a  zone  of  twelve  miles  wide  on  either  side  of 
the  German-Chinese  branch  line  specified  in  the  con- 
cession were  also  granted.  These  concessions  were  to 
be  operated  by  German-Chines^  corporations  on  the 
same  terms  as  the  railroad  concession. 


Shantting 


345 


The  third  part  of  the  treaty,  headed  ' '  Priority  Rights 
in  the  Province  of  Shantung,"  related  to  all  future 
internal  development  concessions  in  Shantung  which 
China  might  see  fit  to  open  to  foreign  bidding.  It  has 
been  claimed  that  the  effect  of  Part  III  was  to  give 
Germany  a  right  of  sovereignty  throughout  the  Prov- 
ince of  Shantung.  The  words  of  the  treaty  disprove 
this  claim  and  show  that  Germany  had  only  an  eco- 
nomic privilege  in  behalf  of  its  engineers  and  merchants. 
The  German  text  and  the  translation  of  this  part  of 
the  treatv  are  as  follows: 


/// —  Theil.  — Prioritdtsrechte 
in  der  Provinz  Shantung. 


Part  III — Priority  Rights  in 
the  Province  of  Shantung. 


Die  Kaiserlich  Chinesische 
Regiening  verpflichtet  sich 
in  alien  Fallen,  wo  zu  irgend- 
welchen  Zwecken  innerhalb 
der  Provinz  Shantung  f remd- 
landische  Hiilfe  an  Personen, 
an  Kapital  oder  Material  in 
Anspruch  genommen  war- 
den soil,  die  betreffenden 
Arbeiten  oder  die  Lieferung 
von  zunachst  deutschen  In- 
dustriellen  und  Handeltrei- 
benden,  welche  sich  mit  der- 
gleichen  Sachen  befassen, 
anzubieten. 


Falls  die  deutschen  Indus- 
triellen  und  Handeltreiben- 
den  nicht  geneigt  sind,  die 


The  Chinese  Imperial 
Government  obligates  itself, 
in  all  cases  in  which  foreign 
aid  for  any  purpose,  within 
the  Province  of  Shantung, 
shall  be  solicited,  in  the  form 
of  personal  services,  the  fur- 
nishing of  capital,  or  the  sup- 
ply of  materials,  to  present 
the  proposals  and  specifica- 
tions for  the  public  works  or 
material-supply  under  con- 
sideration, in  the  first  in- 
stance to  German  industrial- 
development-engineers  and 
material-supply-merchants 
who  are  engaged  in  similar 
undertakings,  for  a  bid  by 
them. 

In  case  the  German  indus- 
trial-development-engineers 
and  material  -  supply  -  met- 


346  The  American  Philosophy  of  Government 

Ausfiihrung  solcher  Arbei-  chants  are  not  disposed  to 
ten  oder  die  Lieferung  von  undertake  the  public  works 
Materialien  zu  iibernehmen,  or  the  supply  of  materials 
so  soil  China  nach  Belieben  under  consideration,  China 
anders  verfahren  konnen.         shall  be  free  to  proceed  in 

any  manner  which  it  may 
deem  expedient. 

Under  this  article,  the  Chinese  Government  was  obli- 
gated to  offer  first  to  competent  German  contractors 
its  specifications  for  any  public  improvements  which  it 
thought  proper  to  make  in  Shantung,  and  for  which  it 
desired  foreign  aid.  It  was  free  to  reject  any  bid  so 
obtained,  and  the  German  contractors  could  not,  by 
refusing  to  bid,  interfere  with  China's  freedom  of  action. 
Only  in  case  the  German  contractors  made  a  bid  which 
the  Chinese  Government  considered  advantageous,  and 
which  was  in  fact  better  than  was  likely  to  be  obtained 
elsewhere,  could  they  hope  for  the  contract.  The  fact 
that  the  railroad  coast-terminal  was  under  German 
jurisdiction  and  that  the  railroads  from  the  coast  to 
the  interior,  and  the  mines  adjacent,  were  owned  and 
operated  by  German-Chinese  corporations,  would  pro- 
tect the  German  contractors,  and  might  enable  them 
in  most  cases  to  make  a  better  bid  than  their  competi- 
tors. They  and  their  competitors  were  assured  by  the 
"Hay  Proposals,"  which  were  accepted  by  Germany 
and  the  other  powers,  against  discrimination  either 
through  railroad  rates,  customs  duties,  or  harbor  dues. 

Considering  the  risk  incident  to  railroad  and  mining 
enterprises,  and  public  contracts  of  all  kinds,  in  the 
unsettled  condition  of  China,  the  economic  concessions 
granted  by  the  treaty  seem  not  to  have  been  unreason- 
able. Nor,  it  would  seem,  were  the  political  privileges 
at  the  coast-terminal,  or  the  military  and  water-supply 
privileges  in  the  adjoining  defensive  zone,  greater  than 


Shantung  347 

were  reasonably  necessary  to  make  the  economic 
privileges  effective.  Certainly,  these  specific  and  care- 
fully defined  privileges  compare  favorably  with  the 
indefinite  privileges  claimed  by  the  other  powers  hav- 
ing spheres  of  influence  in  China  under  their  various 
treaties  and  concessions. 

There  appears  to  have  been  no  abuse  by  Germany  of 
the  social,  political,  and  economic  privileges  granted 
to  her.  That  such  privileges  are  capable  of  gross  abuse 
in  the  hands  of  a  power  disposed  to  use  them  for 
political  purposes  goes  without  saying. 

The  proposals  which  Germany  made  to  China  in 
December,  1898,  for  railroad,  terminal-port  and  pri- 
ority-bid-right concessions  in  Shantung  were  understood 
by  China  and  all  the  treaty  powers  to  have  for  their 
object  the  obtaining  by  Germany  of  a  sphere  of  influence 
similar  to  those  of  other  powers. 

Since  1841,  when  Great  Britain,  at  the  close  of  the 
Opium  War,  obtained  a  cession  of  Hong-Kong  in  per- 
petuity. Great  Britain  had  claimed  and  exercised  the 
paramount  sphere  of  influence  over  all  China  proper. 
France,  asserting  a  "special  interest"  in  South  China, 
by  reason  of  the  "propinquity"  of  its  conquests  and 
colonies  at  the  southern  extremity  of  China — ^Tonkin, 
Annam,  and  Cochin-China — claimed  a  sphere  of  influ- 
ence in  South  China  up  to  the  Yang-tse  Valley.  Russia, 
under  the  secret — though  unofficially  pubUshed — 
"Cassini  Convention"  of  1896,  was  claiming  a  sphere 
of  influence  throughout  Manchuria. 

Japan,  ejected  from  Manchuria  in  1895,  after  having 
exacted  it  from  China  in  the  Chinese- Japanese  War, 
had  Korea  and  Formosa,  and  was  in  military  occupation 
of  Wei-hai-wei  in  North  Shantung,  holding  it  as  security 
for  payment  of  the  indemnity  exacted. 

Of  the  outer  states  of  the  Chinese  Empire,  Burma  was 


34^  The  American  Philosophy  of  Government 

a  colony  of  Great  Britain,  and  Thibet  and  Western 
Mongolia  were  under  its  sole  influence.  A  Russian 
sphere  of  influence  was  extended  over  Eastern  Mongolia. 

In  order  that  Germany  might  acquire  a  sphere  of 
influence,  it  was  necessary  that  she  should  obtain  from 
China  the  minimum  privileges  necessary  to  create  such 
a  sphere,  and  that  the  treaty  of  concession  should  be 
confirmed  by  "arrangements"  with  Great  Britain, 
France,  and  Russia.  Russia,  in  its  effort  to  secure  the 
approval  of  Great  Britain  and  France  to  its  still  doubt- 
ful claim  to  a  sphere  of  influence  in  Manchuria,  was  in 
the  same  position  as  Germany.  Moreover,  under  the 
Cassini  Convention,  Russia  was  granted  a  fifteen-year 
lease  of  Kiaochow  Bay,  and  only  economic  terminal 
rights,  under  China*s  full  sovereignty,  at  Port  Arthur 
and  Talienwan.  She  was  therefore  willing  to  relinquish 
her  political  rights  in  Kiaochow  Bay  in  case  she  could 
obtain  political  rights  at  the  terminals  of  her  Man- 
churian  railroad  necessary  for  the  protection  of  the 
railroad  enterprise.  Thus  Germany  and  Russia,  to- 
gether, were  able  to  bring  about  a  discussion  of  the 
whole  question  of  the  propriety  of  spheres  of  influence 
in  China,  their  relation  to  the  traditional  policy  of  the 
powers,  and  the  rearrangements  necessitated  by  the 
advent  of  the  two  powers. 

There  was  no  doubt  concerning  the  traditional  policy 
of  the  powers  with  respect  to  China.  By  all  the  treaties, 
it  was  expressed  or  implied  that  the  sovereignty  of 
China  was  recognized  and  was  to  be  respected ;  that  the 
integrity  of  its  territorial  domain  was  to  be  preserved; 
and  that  the  nationals  of  all  foreign  nations  in  China 
were  to  be  assured  equal  commercial  opportunity  with- 
out any  discrimination.  To  this  general  policy,  which 
the  Occidental  States  profess  (though  rarely  practice) 
towards  all  transitional  states,  the  popular  name  of  "the 


Shantung  349 

open  door"  is  applied.  The  Conference  of  Algeciras 
of  1906  regarding  Morocco,  gave  it  a  better  name — "the 
triple  principle" — which,  however,  has  not  yet  come 
into  popular  use. 

In  1898,  the  question  of  the  relation  of  spheres  of 
influence  to  the  open-door  policy  was  raised  by  colHsions 
of  interests  of  the  sphere-of -influence  powers  in  various 
parts  of  the  world ;  particularly  in  Africa  by  the  Fashoda 
incident,  and  in  China  by  the  claims  of  Russia  and 
Germany.  The  subject  became  a  matter  of  pubHc  dis- 
cussion. The  liberals  in  Europe  and  the  United  States 
asserted  that  spheres  of  influence  were  mere  veiled 
processes  of  partition,  military  conquest  and  annexa- 
tion, and  unjustifiable;  the  conservatives,  that  they 
were  necessary  to  the  economic  development  of  the 
world,  and  legitimate. 

Between  December,  1897,  and  March,  1898,  negotia- 
tions occurred  between  the  Governments  of  the  leading 
nations,  and  an  entente  on  the  subject  was  reached. 
The  entente  determined  particularly  the  relations  of  the 
Occidental  States  and  Japan  to  China,  and  that  of  the 
European  States  to  Middle  and  Northeastern  Africa, 
and  established  the  necessary  arrangements.  The  prin- 
ciples agreed  upon  in  this  entente^  as  to  China,  were 
announced  by  Mr.  Balfour,  then  Leader  of  the  House, 
in  an  address  to  his  constituents  in  East  Manchester  on 
January  10,  1898;  and  as  to  Africa,  in  a  speech  in  the 
British  House  of  Commons  by  Mr.  Chamberlain,  Sec- 
retary for  the  Colonies,  on  February  24 — Sir  Edward 
Grey,  the  Opposition  leader,  concurring.  The  treaty 
between  China  and  Germany  was  signed  on  March  6, 
1898. 

Mr.  Balfour  stated  the  entente  concerning  China  in 
terms  of  "British  policy."  This  policy,  he  said,  was 
primarily  to  maintain  the  open  door  in  China.    Great 


350  The  American  Philosophy  of  Government 

Britain,  he  said,  did  not  regard  it  as  contrary  to  this 
primary  principle  that  other  states  should  have  in 
China  extraterritorial  port-privileges  and  accompany- 
ing foreign-settlement  privileges,  provided  these  ports 
were  kept  open  on  equal  terms  to  the  commerce  of  all 
nations,  and  provided  the  unity  and  uniformity  of  the 
customs  system  of  China  was  not  interfered  with. 
Great  Britain,  he  also  said,  did  not  regard  it  as  contrary 
to  this  primary  principle  that  other  nations  than  Great 
Britain  should  have  economic  rights  on  behalf  of  their 
nationals  in  the  foreign  trade  of  China  or  in  aiding 
China  with  respect  to  its  internal  development,  pro- 
vided these  rights  were  not  exclusive.  This  statement, 
which  was  shown  by  Mr.  Chamberlain's  statement  of 
February  24  concerning  Africa  to  have  been  accepted 
by  France  as  a  part  of  the  general  entente^  amounted 
to  an  approval  of  the  pending  proposal  of  Russia  for 
a  sphere  of  influence  in  Manchuria,  and  of  Germany  for 
a  sphere  of  influence  in  Shantung,  since  these  proposals 
conformed  to  the  rules  established  by  the  entente  con- 
cerning China.  The  needful  grants  and  ratifying 
acquiescences  were  exchanged  during  the  year  1898. 
The  final  details  of  the  entente  as  respects  China  were 
arranged  on  the  initiative  of  the  United  States,  through 
the  "Hay  Proposals"  of  July,  1899,  addressed  to  and 
accepted  by  the  powers  having  or  claiming  to  have 
spheres  of  influence  in  China.  It  was  by  the  "Hay 
Proposals,"  apparently,  that  the  term  "sphere  of  in- 
fluence" first  received  international  recognition  as  a 
term  describing  a  legitimate  international  institution. 

Russia  relinquished  the  leasehold  of  Kiaochow  Bay 
in  consideration  of  obtaining  the  undisputed  sphere 
of  influence  for  railroad  and  mining  development  in 
Manchuria,  terminal-port  and  extraterritorial  foreign- 
settlement  privileges  at  Talienwan  (later  Dalny)  under 


I 


Shantting  351 

a  twenty-five  year  lease,  and  fortress  rights  for  the 
same  period  at  the  natural  Manchurian  fortress  of  Port 
Arthur.  In  addition  to  the  enormous  colonies  and  con- 
cessions previously  mentioned,  France  and  Great 
Britain  seized  the  opportunity  further  to  increase  their 
influence  and  territory.  France  acquiesced  in  the  va- 
rious arrangements,  in  consideration  of  obtaining 
terminal-port  and  extraterritorial  foreign-settlement 
privilege  by  ninety-nine  year  lease  at  Kwang-chau-wan, 
in  the  southern  extremity  of  China,  and  a  sphere  of 
influence  for  railroad  and  mining  development  in  the 
southern  part  of  China  to  the  limits  of  the  valley  of 
the  Yang-tse  River;  China's  hesitant  action  being 
quickened  by  military  pressure  brought  to  bear  by 
France  on  account  of  the  murder  of  two  French  naval 
officers  near  Kwang-chau-wan.  Great  Britain  obtained 
various  compensations — ^first,  the  fortress  and  naval 
base  of  Wei-hai-wei  in  North  Shantung,  commanding 
the  German  concession  at  Kiaochow,  Port  Arthur,  the 
Gulf  of  PechiH,  Peking,  and  all  North  China.  This 
port  was  then  held  by  Japan  as  security  for  payment 
of  the  indemnity  exacted  by  it  from  China  by  the  terms 
of  the  treaty  of  peace  at  the  close  of  the  Chinese- Japa- 
nese War.  A  German  and  a  British  banking  syndicate 
provided  China  with  the  necessary  loan  to  pay  the 
indemnity,  in  equal  shares.  Great  Britain  further  ob- 
tained from  China  the  concession,  by  ninety-nine  year 
lease,  of  the  Kowloon  district  on  the  mainland  of  China 
opposite  to  the  British  island  fortress  and  naval  and 
commercial  harbor  of  Hong-Kong,  thus  securing  the 
encircling  territory  of  Hong-Kong  Bay  and  being  en- 
abled to  complete  its  fortification.  She  also  obtained 
the  assurance  of  all  concerned  that  her  sphere  of  influ- 
ence throughout  the  Yang-tse  Valley — the  great  and 
enormously  productive  middle  zone  of  China,  including 


352  The  American  Philosophy  of  Government 

the  international  port  and  city  of  Shanghai — should 
remain  undisputed.  The  area  of  North  China,  north 
of  Shantung,  including  Peking  and  the  international 
port  and  city  of  Tientsin,  was  recognized  as  an  inter- 
national political  sphere  of  influence,  though  still  eco- 
nomically a  British  sphere.  Italy  demanded  a  port 
and  a  sphere  of  influence,  but  was  denied  the  privilege. 
With  the  consent  of  China,  it  was  agreed  that  a  British 
banking  syndicate  should  finance  and  build  the  south 
half  of  the  Shantung  section  of  the  South  Peking-to- 
Paris  trunk  Hne  then  projected  to  pass  through  Nanking 
and  Canton,  and  that  a  German  banking  syndicate 
should  build  the  north  half  of  the  section. 

The  indemnity  to  Japan  furnished  by  England  and 
Germany  having  been  paid,  Japan  evacuated  Wei-hai- 
wei,  and  being  thus  forced  out  of  China  was  compelled 
to  content  herself  temporarily  with  Korea  and  the 
island  of  Formosa,  which  she  had  obtained  from  China 
by  conquest  in  the  Chinese- Japanese  War.  The  govern- 
ment officials  of  China  viewed  with  relief  the  action 
of  Germany  and  Russia  in  obtaining  their  ports  and 
spheres  of  influence,  as  strengthening  the  defenses  of 
China  by  placing  two  more  Occidental  powers  on  the 
coast  facing  Japan.  The  common  people,  however, 
regarded  the  institution  of  the  spheres  of  influence 
with  suspicion.  They  had  been  deeply  angered  at  the 
humiliating  despoilment  insisted  upon  by  Japan  at  the 
close  of  the  Chinese-Japanese  War,  which  was  permitted 
by  the  Occidental  powers.  They  henceforth  regarded 
Japan  as  China's  permanent  enemy  and  looked  upon 
the  Occidental  powers  as  treacherous  friends,  who, 
while  professing  to  regard  China  as  an  independent 
state,  were,  by  means  of  Japan,  preparing  the  way  for 
China's  disorganization,  partition,  and  ultimate  enslave- 
ment.   At  that  time,  1895,  the  anti-foreign  and  anti- 


Shantung  353 

Christian  movement  which  in  1900  eventuated  in  the 
Boxer  Revolution  and  the  massacre  of  the  foreigners, 
and  especially  Christians,  had  its  beginning.  This 
movement  was  not  assuaged  by  the  action  of  the 
powers  in  1896,  in  inducing  Japan  to  give  up  her  con- 
quests in  Manchuria;  for  it  soon  appeared  that,  as 
compensation,  China  was  forced  to  give  her  the  privi- 
lege of  having  a  foreign  consular  jurisdiction  over  all 
citizens  of  Japan  throughout  China.  Japan  was  thus 
put  on  a  parity  with  the  Occidental  States,  while 
China  was  denied  a  reciprocal  privilege  in  Japan — an 
intense  humiliation,  which  both  Government  and  people 
of  China  properly  resented. 

The  international  arrangements  of  1898  were  in  pur- 
suance of  a  definite,  well  thought-out  plan.  The  rail- 
road and  mining  enterprises  were  to  be  instruments 
of  defense  as  well  as  means  for  internal  development. 
The  one  probable  aggressor  had  in  mind  by  all  concerned 
was  Japan ;  and  the  probable  place  of  invasion  was  Kiao- 
chow  Bay,  since  this  from  a  military  standpoint  is  best 
adapted  for  sudden  invasion.  Great  Britain,  intrenched 
at  its  fortresses  of  Wei-hai-wei  and  Hong-Kong,  and 
still  claiming  a  paramount  sphere  of  influence  over 
China  for  all  purposes,  supervised  Germany's  opera- 
tions in  Shantung  and  Russia's  operations  in  Man- 
churia. All  the  Occidental  States  concerned  were  so 
located  on  the  coast  of  China  that,  united,  they  could 
render  such  prompt  aid  as  to  make  a  Japanese  invasion 
impossible.  Disunion  of  these  states  in  1905  permitted 
Japan  to  seize  Port  Arthur  and  Dalny.  The  defenses 
of  China  against  Japan  are  seriously  weakened  by  the 
political  sphere  of  influence  and  the  strategic  military 
position  which  Japan  holds  in  Southern  Manchuria. 

Germany's  privileges,  under  the  treaty,  though  essen- 
tially economic,  were  also  social  and  of  a  strictly  per- 
23 


354  The  American  Philosophy  of  Government 

sonal  and  highly  confidential  character.  The  spheres 
of  influence  were  granted  by  China  to  Germany  and  to 
the  other  states  as  personal  and  social  privileges,  in 
order  that  both  might  receive  benefit.  All  social  privi- 
leges are  based  on  friendship  and  a  desire  to  help  one's 
friends  and  one's  self,  and  are  by  their  nature  non- 
transferable. The  relations  of  close  friendship  on  which 
such  privileges  are  based  do  not  rise  from  "propin- 
quity. ' '  A  neighbor  is  not  necessarily  a  friend ;  certainly 
not  always  one  whom  one  would  choose  as  a  trusted 
associate  in  developing  one's  own  property,  or  to  whom 
one  would  give  the  privilege  of  a  continuous  lodgment 
on  one's  homestead.  On  the  contrary,  a  neighbor  who 
is  untrustworthy  is  by  his  neighborhood  doubly  dis- 
qualified from  being  admitted  into  such  a  confidential 
social  relationship,  and  neighborhood  in  such  case  is 
only  disadvantageous.  The  only  ''special  relations" 
which  any  state  can  properly  put  forward  as  entitling 
it  to  a  sphere  of  influence  within  the  body-politic  of 
another  state,  are  the  "special  relations"  of  friendship, 
mutual  confidence  and  mutual  aid,  which  grow  up 
between  states  and  persons  of  good  will  toward  each 
other;  and  the  only  "special  interests"  are  those  which 
each  state  and  each  person  has  in  advancing  the  welfare 
of  all  other  states  and  all  other  persons.  These  "special 
relations,"  and  "special  interests,"  are  the  basis  of  the 
Monroe  Doctrine. 

The  leasehold  rights  of  Germany  were  expressly 
declared  to  be  non-transferable.  The  provision  in  the 
German  text  of  the  treaty  is:  "Deutschland  verp- 
flichtet  sich  das  von  China  gepachtete  Gehiet  niemals  an 
eine  andere  Macht  wetter  zu  verpachten. ' '  A  literal  trans- 
lation of  these  words  is:  "Germany  obligates  itself 
never  to  extend  farther  the  leasing  process,  as  respects 
the  territory  leased  from  China,  to  any  other  state." 


Shantung  355 

This  clearly  cuts  off  all  privilege  of  transfer  of  the  terri- 
tory, whether  by  assignment  or  sub-lease. 

So  long  as  China  was  neutral,  the  concessions  to 
Germany  doubtless  remained  in  force.     The  military 
operations  of  Great  Britain  and  Japan,  outside  the 
leased  territory,  and  probably  also  within  it,  were  vio- 
lations of  China's  neutrality.     By  China's  co-belliger- 
ency with  Great  Britain  and  Japan,  these  violations 
were  doubtless  condoned.     On  the  declaration  of  war 
by  China,  Germany's  privileges  of  all  kinds  in  Shantung 
lapsed,  and  her  state-property  in  the  leased  territory 
reverted  to  China.    The  action  of  the  Allied  and  Asso- 
ciated Powers  is,  therefore,  not  a  transfer  of  Germany's 
sphere  of  influence  to  Japan,  but  the  attempted  institu- 
tion by  the  allied  and  associated  states  other  than 
China  of  a  new  sphere  of  influence  in  favor  of  Japan 
in  Shantung  similar  to  that  which  Germany  had  before 
the  war;  and  an  attempted  transfer  to  Japan  of  the 
title  of  China  to  the  former  public  property  of  Germany 
in  Tsingtao.    China  properly  insists  upon  the  right  to 
choose  among  all  the  states  of  the  world,  without  regard 
to  their  location,  those  whom  it  regards  as  states  of 
good  will,  and  to  select  those  whom  it  may  properly 
admit  to  its  honor  and  confidence  and  to  lodgment 
within  its  own  domains,  in  order  that  they  may  help 
it  in  helping  itself   dtiring  the  trying  period  of  its 
transition    from   an    Oriental   to   an  Occidental   eco- 
nomic status.    The  "twenty-one  demands"  of  Japan, 
backed  by  military  force,  are  in  law  nugatory.    The 
secret  treaties  of  Great  Britain  and  France  with  Ja- 
pan,  and  the  action  of  the  President  of  the  United 
States  in  signing  the  Shantung  provision  of  the  Peace 
Treaty,  are  equally  nugatory.     It  only  remains  for 
the  Senate  of  the  United  States  to  announce  the  legal 
situation,  and  to  insist  upon  an  amendment  whereby 


356  The  American  Philosophy  of  Government 

the  Shantung  provisions  will  be  stricken  out  of  the 
treaty. 

The  theory  and  practice  of  the  various  states  differ 
as  respects  spheres  of  influence.  According  to  French 
and  Japanese  philosophy,  they  are  essentially  political 
institutions  having  an  economic  and  also  a  political 
object.  By  the  Germans  and  Russians  they  are  re- 
garded as  essentially  economic-social  institutions,  with 
such  political  privileges  as  are  needful  to  render  them 
efficient.  In  British  practice  they  are  one  thing  or  the 
other  according  to  the  views  of  the  British  government 
concerning  the  policy  to  be  pursued  in  any  particular 
exigency.  The  United  States,  by  the  * '  Hay  Proposals, '  * 
recognized  spheres  of  influence  as  legitimate  institu- 
tions without  attempting  to  define  their  import. 
Whatever  the  theory  or  practice,  however,  they 
unquestionably  menace  the  peace  of  the  states  where 
they  exist  and  the  proper  economic  development  of  the 
world. 


THE  DISPOSITION  OF  THE  GERMAN 
COLONIES 


357 


THE  DISPOSITION  OF  THE  GERMAN 
COLONIES 

Reprinted  from  The  Nation,  October  i8,  1919 
I 

IN  considering  the  disposition  to  be  made  of  Ger- 
many's interests  in  territory  and  sovereignty 
outside  its  domestic  frontiers,  it  is  necessary  to  dis- 
tinguish its  colonies — that  is,  those  regions  of  whose 
territory  it  had  full  title  and  over  whose  people  it  had 
full  sovereignty — from  its  concessions — that  is,  the 
easements  in  land  and  personal  privileges  which  had 
been  granted  to  it  by  a  state,  to  be  exercised  by  it 
upon  the  territory  and  under  the  sovereignty  of  that 
state. 

The  German  colonies  were  Togoland,  Cameroon, 
German  East  Africa,  German  Southwest  Africa,  Ger- 
man New  Guinea,  and  certain  islands  in  the  Pacific 
Ocean;  the  interests  which  it  had  in  China  (including 
those  under  the  Shantung  treaty),  Siam,  and  other 
states  being  concessions. 

For  purposes  of  disposition,  the  colonies  were  grouped 
and  divided  thus: 

Togoland,  Cameroon,  and  German  East  Africa 
formed  a  group.  All  these  colonies  were  tropical  and 
were  densely  inhabited  by  blacks,  with  a  few  white  set- 
tlers. They  were  all  within  the  Conventional  Basin  of 
the  Congo  as  fixed  by  the  Berlin  African  Act  of  1885, 
and  also  within  the  much  larger  Middle  African  Zone 

359 


360  The  American  Philosophy  of  Government 

of  International  Influence  established  by  the  Brussels 
African  Act  of  1890,  and  were  subject  to  the  provisions 
of  these  international  acts.  This  group  was  divided 
into  two  parts,  one  consisting  of  Togoland  and  Came- 
roon, and  the  other  of  German  East  Africa.  France  and 
Great  Britain  owned  colonies  adjoining  Togoland  and 
Cameroon;  British  and  Portuguese  colonies  adjoined 
German  East  Africa;  and  the  Belgian  Congo  lay  be- 
tween Cameroon  and  German  East  Africa. 

German  Southwest  Africa  required  to  be  considered 
separately.  It  was  outside  the  Congo  Basin  and  the 
International  Zone.  Its  climate  was  healthful.  Its 
population  included  a  considerable  settlement  of  whites, 
and  a  large  number  of  partly  civiHzed  blacks.  The 
adjoining  regions  were  British  and  Portuguese.  The 
Union  of  South  Africa  had  long  desired  to  annex  it; 
but  according  to  international  law  such  annexation 
could  be  effected  only  by  Great  Britain  first  annexing 
German  Southwest  Africa  as  a  colony  and  then  placing 
it  by  executive  order  or  Act  of  Parliament  under  the 
jurisdiction  of  South  Africa. 

German  New  Guinea  also  required  to  be  considered 
separately.  It  formed  a  part  of  the  large  island  of  New 
Guinea  lying  off  the  north  coast  of  Australia,  the  rest 
of  the  island  being  divided  into  two  parts,  one  of  which 
was  a  colony  of  Great  Britain  and  the  other  a  colony  of 
Holland.  Within  the  German  Colony  of  New  Guinea 
was  located  the  headquarters  of  the  government  of 
Germany's  Pacific  Island  possessions.  The  Common- 
wealth of  Australia  had  long  desired  to  annex  the  whole 
island  of  New  Guinea  as  a  colony,  but  could  acquire 
territory  only  through  Great  Britain. 

Of  the  other  German  islands  south  of  the  equator, 
the  Bismarck  and  the  Solomon  Islands  might  be  re- 
garded either  separately  or  as  grouped  with  German 


The  German  Colonies  361 

New  Guinea.  German  Samoa  is  a  part  of  a  group, 
the  remainder  of  which  is  owned  by  the  United  States. 
The  German  Samoan  Islands  were  desired  by  New 
Zealand.  Here,  as  in  the  case  of  South  Africa  and 
Australia,  the  acquisition  could  be  effected  only  through 
Great  Britain. 

North  of  the  equator  lie  the  Ladrone,  CaroHne,  Pelew, 
and  Marshall  Islands.  These  might  be  regarded  either 
separately  or  as  part  of  a  group ;  but  the  group,  in  order 
to  be  complete,  would  have  to  include  the  Philippines 
and  Guam,  which  they  surround.  The  Marshall  Islands 
lie  between  the  Philippines  and  Hawaii — that  is,  be- 
tween the  United  States  and  China.  The  manner  of 
disposition  of  all  these  islands  was  especially  important 
to  the  United  States. 

By  commitments  of  Great  Britain  to  AustraHa,  South 
Africa  and  New  Zealand,  it  was  arranged  that  they 
should  conquer  the  German  colonies  desired  by  them, 
and  that  Great  Britain  would  do  all  in  its  power  to 
secure  their  conquests  to  them  at  the  peace.  By 
unpublished  understanding  between  Great  Britain  and 
France,  they  were  to  conquer  Togoland  and  Cameroon, 
and  to  support  each  other  at  the  peace  in  obtaining 
a  disposition  to  them  jointly,  subject  to  partition  by 
their  agreement,  France  agreeing  to  support  the  British 
claim  to  German  East  Africa,  subject  to  arrangement 
with  Belgium. 

In  February  and  March,  191 7,  Japan,  in  the  same 
secret  agreement  with  Great  Britain  and  France  by 
which  they  acquiesced  in  its  claim  to  have  Germany's 
Shantung  concessions,  secured  their  consent  to  conquer 
the  German  Islands  north  of  the  equator  and  their 
agreement  to  support  its  claim  to  those  islands.  Great 
Britain's  acquiescence  was  on  the  understanding,  which 
was  accepted  by  Japan,  that  Japan  would  "in  the 


362  The  American  Philosophy  of  Govermnent 

eventual  peace  settlement  treat  in  the  same  spirit  Great 
Britain's  claims  to  the  German  Islands  south  of  the 
Equator."  France  agreed  to  Japan's  demand  in  con- 
sideration that  Japan  would  agree — as  it  did — ^to  ''give 
its  support  to  obtain  from  China  the  breaking  of  its 
diplomatic  relations  with  Germany,"  Japan  also  agree- 
ing to  use  its  efforts  so  that  China,  upon  the  breach 
of  diplomatic  relations,  would  proceed  to  confiscate  all 
German  interests  within  its  territory  and  eject  or 
eliminate  Germans  and  German  influence. 

Against  the  military  operations  of  the  Allies,  resist- 
ance was  made  by  Germans  to  the  utmost  extent  pos- 
sible. In  German  New  Guinea  and  the  Pacific  Islands 
other  than  German  Samoa,  resistance  by  the  few  resi- 
dent Germans  was  out  of  the  question,  and  the  conquest 
consisted  merely  in  taking  possession.  In  the  African 
colonies.  Allies  and  Germans  were  assisted  by  forces  of 
blacks  trained  and  led  by  them.  Togoland  and  Came- 
roon were  captured  by  a  British  and  French  force; 
German  Southwest  Africa  by  forces  of  the  Union  of 
South  Africa;  German  East  Africa  by  a  British  and 
East  Indian  force  with  forces  from  the  Belgian  Congo ; 
German  New  Guinea  and  the  islands  in  the  Pacific 
south  of  the  equator  (not  including  German  Samoa)  by 
an  Australian  naval  expedition ;  German  Samoa  by  a  New 
Zealand  naval  expedition ;  and  the  German  Pacific  Islands 
north  of  the  equator  by  a  Japanese  naval  expedition. 

Conquests  of  colonies  inhabited  by  aboriginal  tribes, 
it  has  long  been  realized,  involve  the  setting  of  these 
tribes  against  each  other  and  tend  to  demoralize  them 
and  make  them  dangerous  to  civilization.  The  two 
parties  of  civilized  men  who  are  fighting  each  other, 
few  in  number  on  account  of  climatic  conditions,  and 
sturounded  by  the  natives,  from  the  necessity  of  the 
case  use  threats,  persuasion,  bribery,  and  flattery,  and 


The  German  Colonies  363 

play  upon  the  emotions  of  these  ignorant  and  childlike 
peoples,  in  order  to  obtain  their  military  assistance  in 
the  struggle.  With  a  view  to  prevent  the  injiiry  to  the 
natives  and  the  devastation  of  settlements  and  missions 
caused  by  arousing  their  fighting  spirit,  a  determined 
effort  was  made  by  the  United  States,  at  the  time  when 
the  question  of  Middle  Africa  first  arose,  to  place  it  in  a 
situation  where  it  could  not  be  used  as  a  theatre  of  war 
by  civilized  states.  At  the  Berlin  African  Conference 
of  1885,  the  United  States,  supported  by  Germany  and 
Great  Britain,  nearly  succeeded  in  obtaining  the  inser- 
tion in  the  final  act  of  a  provision  whereby  the  whole 
Conventional  Basin  of  the  Congo  wotild  have  been 
permanently  neutralized  under  international  guaranty. 
The  sentiment  of  the  Conference  was  strongly  in  favor 
of  this  action.  France  tenaciously  opposed  it,  the 
French  chief  delegate.  Baron  de  Courcel,  asserting  that 
neutralization  of  the  region  was  impracticable  because 
*Vhen  a  state  is  at  war,  it  wages  war  by  all  means  in 
its  power."  The  Conference  did,  however,  adopt  a 
provision  requiring  the  signatories  of  the  final  act  to 
use  their  good  offices  to  induce  the  belligerents  in 
European  wars  to  neutralize  the  Middle  African  colo- 
nies of  either  or  both  of  them  during  the  war  by  mutual 
agreement.  The  United  States,  as  Secretary  of  State 
Root  held  in  1907,  though  not  a  party  to  the  Berlin 
African  Act  as  a  whole,  since  the  Senate  did  not  ratify 
it,  is,  by  reason  of  being  a  party  to  the  Brussels  African 
Act,  a  party  by  adoption  to  all  that  part  of  the  Berlin 
Act  which  has  for  its  object  the  protection  of  the  native 
inhabitants.  But  neither  the  United  States,  when  it 
was  neutral,  nor  any  of  the  parties  to  the  Berlin  Act, 
tendered  its  good  offices  to  the  belligerents  in  the  late 
war  for  the  purpose  of  having  its  Middle  African  colo- 
nies neutralized  during  the  war's  continuance. 


364  The  American  Philosophy  of  Goveminent 

It  has  been  maintained  that  the  capture  of  the  Ger- 
man colonies  by  the  Allies  did  not  have  the  character 
of  a  conquest,  because  Germany  acquired  its  title  to 
them  illegally.  An  examination  of  the  facts,  however, 
shows  that  its  titles  were  acquired  according  to  methods 
recognized  by  international  law  and  practiced  by  other 
states,  and  that  they  had  many  times  been  confirmed 
by  treaties  and  international  arrangements. 

It  has  also  been  stated  that  the  conquests  were  made 
by  the  Allies  in  order  to  liberate  the  native  populations. 
That  natives  were  abused  in  German  Southwest  Africa 
and  German  East  Africa  is  indisputable.  Similar  abuses 
occurred  in  the  African  colonies  of  all  the  other  states. 
Up  to  the  time  of  the  war  and  even  during  its  early 
months  the  colonial  administrative  methods  of  Germany 
were  praised  by  British  experts.  Its  work  in  industrial 
education  of  the  natives,  in  medical  and  scientific  re- 
search, and  in  the  maintenance  of  public  health,  was 
recognized  by  them  as  remarkable.  A  comparison  of 
the  penal  laws  instituted  for  the  natives  under  German 
administration  with  those  of  other  states  having  similar 
colonies  shows  that  these  laws  were  as  humane  as  those 
of  the  others. 

II 

The  fifth  of  the  Fourteen  Points  announced  on  Janu- 
ary 8,  19 1 8,  by  President  Wilson,  and  accepted  by  the 
belligerents  as  the  basis  of  the  peace  treaty,  was  as 
follows : 

A  free,  open-minded,  and  absolutely  impartial  adjustment 
of  all  colonial  claims,  based  upon  a  strict  observance  of  the 
principle  that  in  determining  all  such  questions  of  sover- 
eignty the  interest  of  the  populations  concerned  must  have 
equal  weight  with  the  equitable  claims  of  the  government 
whose  title  is  to  be  determined. 


The  German  Colonies  365 

The  Peace  Conference,  in  organizing  itself,  instituted, 
as  its  chief  organ,  a  controlling  committee  of  five  com- 
posed of  representatives  of  the  five  principal  AlHes — 
Great  Britain,  France,  the  United  States,  Italy,  and 
Japan.  This  committee  was  called  the  "Council,"  or 
the  "Supreme  Council,"  of  the  Conference.  The  Allied 
and  Associated  Powers  regarded  themselves  as  the 
"Concert  of  Nations. ' '  The  jurisdiction  of  the  *  'Concert 
of  Nations"  was  undefined,  and  was  in  fact  extended, 
through  the  Council,  to  the  doing  of  whatever  the  Coun- 
cil saw  fit  to  do.  The  "Constitution"  or  "Covenant" 
adopted  by  the  Conference  was  intended  to  continue 
and  define  the  "Concert  of  Nations"  and  convert  it  into 
a  permanent  "League  of  Nations."  President  Wilson 
in  his  address  to  the  Senate  on  July  10, 1 919,  on  the  occa- 
sion of  his  presentation  of  the  peace  treaty,  spoke  of 
the  Conference  as  engaged  in  "the  difficult  work  of 
arranging  an  all  but  universal  adjustment  of  the 
world's  affairs,"  and  said: 

The  Conference  .  .  .  was  not  to  be  ephemeral.  The 
Concert  of  Nations  was  to  continue,  under  a  definite  Cove- 
nant which  had  been  agreed  upon  and  which  all  were  con- 
vinced was  workable.  They  could  go  forward  with 
confidence  to  make  arrangements  intended  to  be  permanent. 

The  delegates  of  the  United  States  to  the  Conference 
of  the  group  of  victor  states  to  formulate  terms  of  peace 
with  the  vanquished  group  were  undoubtedly  without 
constitutional  authority  to  bring  about  or  participate 
in  a  conversion  of  the  Conference  of  victors  into  a 
universal  government  having  supreme  jurisdiction  over 
all  states ;  and  if  the  peace  treaty  purports  to  legitimize 
and  perpetuate  such  an  act  of  the  Conference,  as  it 
seems  to  do,  it  will  be  of  no  vaHdity  for  this  purpose, 
so  far  as  the  United  States  is  concerned,  even  though 


366  The  American  Philosophy  of  Government 

the  peace  treaty  were  ratified  by  the  Senate.  Such  an 
act  would  be  an  entering  into  a  union  with  other  states 
and  would  require  a  constitutional  amendment  or  at 
least  previous  approval  by  act  of  Congress. 

The  Covenant  of  the  League  of  Nations,  which  was 
adopted  by  the  Conference  on  April  28,  1919,  and  incor- 
porated in  the  peace  treaty,  made  no  distribution  of  the 
German  colonies.  By  Article  XXII  it  made  a  provision 
for  their  administration  by  any  states  to  which  they 
should  be  distributed,  specifying  that  the  distribution 
should  be  "to  advanced  nations  who  by  reason  of  their 
resources,  their  experience  or  their  geographical  position 
can  best  undertake  this  responsibility,  and  who  are 
willing  to  undertake  it,"  and  requiring  that  any  such 
distributee  state  should  be  held  to  be  a  mandatory  on 
behalf  of  the  League  of  Nations  in  administering  the 
region,  and  should  be  under  the  surveillance  of  the 
League.  This  necessarily  impHed  that  the  distribution 
was  to  be  made  by  the  League. 

The  Covenant  permitted  a  self-governing  dominion 
or  colony  to  be  a  member  of  the  League,  and  referred 
to  the  members  of  the  League  as  "states."  A  self- 
governing  colony  or  dominion,  upon  becoming  a  member 
of  the  League,  is  thereby  undoubtedly  recognized  as  an 
independent  state.  Inasmuch  as  Canada,  Australia, 
South  Africa,  New  Zealand,  and  India  are  parties  to  the 
Covenant,  the  adoption  of  it  will  thus  make  each  of 
them  independent  and  eligible  to  receive  a  mandate  for 
administering  any  region,  in  any  part  of  the  world, 
which  may  be  distributed  to  them  by  the  League.  The 
possibilities  involved  in  this  arrangement  deserve  care- 
ful consideration. 

On  May  5,  1919,  a  "provisional  organization  of  the 
League  of  Nations"  was  made  at  Paris.  In  the  pub- 
lished report  it  was  said  that  "in  adopting  the  rules  for 


The  German  Colonies  367 

the  temporary  organization  care  was  taken  by  the  com- 
mittee that  nothing  of  a  permanent  nature  should  be 
done  previous  to  the  ratification  of  the  peace  treaty  by 
the  United  States  Senate." 

During  the  period  from  April  24  until  after  May  6, 
1 919,  Italy  was  not  represented  in  the  Conference  or 
in  the  Council,  the  Italian  delegates  having  withdrawn 
from  the  Conference.  The  "Council"  was  given  the 
name  of  "The  Council  of  Three."  In  the  published 
account  of  its  proceedings  appears  the  following: 

The  disposition  to  be  made  of  the  former  German  colo- 
nies was  decided  at  the  Peace  Conference  in  Paris  on  May 
6,  1 91 9,  by  the  Council  of  Three — M.  Clemenceau,  Presi- 
dent Wilson  and  Mr.  Lloyd  George.  .  .  .  The  official 
statement  in  detail  is  as  follows: 

Togoland  and  Cameroon. — France  and  Great  Britain 
shall  make  a  joint  recommendation  to  the  League  of  Nations 
as  to  their  fate. 

German  East  Africa. — The  mandate  shall  be  held  by 
Great  Britain. 

Genxian  Southwest  Africa. — The  mandate  shall  be  held 
by  the  Union  of  South  Africa. 

The  German  Samoan  Islands. — The  mandate  shall  be 
held  by  New  Zealand. 

The  other  German  Pacific  possessions  south  of  the  Equa- 
tor, excluding  the  German  Samoan  Islands  and  Nauru. — 
The  mandate  shall  be  held  by  Australia. 

Nauru  (Pleasant  Island). — The  mandate  shall  be  given 
to  the  British  Empire. 

The  German  Pacific  Islands  north  of  the  Equator. — The 
mandate  shall  be  held  by  Japan. 

On  the  next  day — May  7,  1919 — the  delegates  of  the 
AlHed  and  Associated  Powers,  assembled  at  Versailles, 


368  The  American  Philosophy  of  Government 

presented  the  peace  treaty  to  the  German  delegates  for 
signature. 

On  the  day  following,  Belgium  filed  a  protest  with 
the  Council  against  the  distribution  made  by  the 
Council  of  Three,  in  which  it  was  said: 

In  view  of  Belgium's  important  military  operations  in 
Africa,  her  sacrifices  to  insure  the  conquest  of  German  East 
Africa,  and  the  fact  that  her  situation  has  given  her  rights 
on  that  continent,  Belgium  is  unable  to  admit  that  German 
East  Africa  could  be  disposed  of  by  agreements  in  which 
she  had  not  participated. 

The  peace  treaty  was  signed  by  Germany  on  June 
28,  1919. 

The  statement  above  quoted,  that  the  Council  of 
Three,  before  the  peace  treaty  was  even  presented  to 
Germany,  ''decided"  upon  the  disposition  of  the  Ger- 
man colonies  which  was  *'to  be  made"  is  noticeable. 
It  necessarily  implies  either  that  the  Council  of  Three, 
acting  as  the  Council  of  the  Conference,  or  purporting 
to  act  as  the  Council  of  "the  Concert  of  Nations,"  or 
as  the  Provisional  Council  of  the  League  of  Nations, 
was  proposing  a  project  of  law,  or  a  project  of  decree, 
to  become  a  law  or  decree  by  action  of  the  Conference 
in  plenary  session,  or  by  action  of  the  Conference  as 
purporting  to  be  ''the  Concert  of  Nations,"  or  by  ac- 
tion of  the  League  of  Nations  when  the  League  should  be 
formed;  or  that  the  "Council  of  Three"  was  making 
a  distribution  of  conquests  to  be  carried  into  effect  by 
agreement  of  the  parties  concerned. 

Inasmuch  as  the  distribution  followed  exactly  the 
plan  of  conquest  and  also  corresponded  exactly  with 
Great  Britain's  commitments  to  Australia,  South  Af- 
rica, and  New  Zealand,  and  with  the  understandings 
between  Great  Britain,  France,  and  Japan,  the  act  of 


The  German  Colonies  369 

the  Council  of  Three  was  in  fact  a  division  of  the  spoils 
by  the  controlling  victors,  whatever  may  be  the  theory 
on  which  it  is  now  sought  to  support  it.  Belgium's 
protest  shows  that  it  took  this  view. 

It  has  recently  been  reported  that  Belgium's  claims 
have  been  satisfied  by  Great  Britain  ceding  to  it  a  part 
of  German  East  Africa — a  proceeding  which  can  be 
explained  only  on  the  theory  that  Great  Britain  at  least 
considers  itself  to  hold  the  full  title  and  sovereignty  of 
the  regions  allotted  to  it. 

Ill 

In  the  peace  treaty  the  following  disposition  of  the 
German  colonies  is  made: 

Article  118.  In  territory  outside  her  European  frontiers 
as  fixed  by  the  present  Treaty,  Germany  renounces  all 
rights,  titles  and  privileges  whatever  in  or  over  territory 
which  belonged  to  her  or  to  her  allies,  and  all  rights,  titles 
and  privileges,  whatever  their  origin,  which  she  held  as 
against  the  Allied  and  Associated  Powers. 

Germany  undertakes  immediately  to  recognize  and  to 
conform  to  the  measures  which  may  be  taken  now  or  in 
the  future  by  the  Principal  Allied  and  Associated  Powers, 
in  agreement  where  necessary  with  third  Powers,  in  order 
to  carry  the  above  stipulation  into  effect. 

In  particular  Germany  declares  her  acceptance  of  the 
following  Articles  relating  to  certain  special  subjects. 

Article  119.  Germany  renounces  in  favor  of  the  Princi- 
pal Allied  and  Associated  Powers  all  her  rights  and  titles 
over  her  oversea  possessions. 

Articles   120  to   127,   inclusive,   also  relate  to   the 

German  colonies.    Sections  120  to  125,  inclusive,  have 

for  their  purpose  the  elimination  of  German  property 

and  interests,  public  and  private,  in  these  colonies. 

24 


370  The  American  Philosophy  of  Government 

Article  126  requires  Germany  to  observe  the  provisions 
of  the  Brussels  African  Act  relating  to  the  trade  in  arms 
and  spirits  in  Middle  Africa.  Article  127  provides 
that  "The  native  inhabitants  of  the  former  German 
oversea  possessions  shall  be  entitled  to  the  diplomatic 
protection  of  the  Governments  exercising  authority 
over  those  territories." 

In  Annex  VII  of  Article  244,  relating  to  the  transfer 
of  the  German  submarine  cables,  it  is  provided  as 
follows : 

Germany  renounces  on  her  own  behalf  and  on  behalf  of 
her  nationals  in  favor  of  the  Principal  Allied  and  Associated 
Powers  all  rights,  titles  and  privileges  of  whatever  nature 
in  the  submarine  cables  set  out  below,  or  in  any  portions 
thereof: 

Yap-Shanghai,  Yap-Guam,  and  Yap-Menado  (Celebes): 
from  Yap  Island  to  Shanghai,  from  Yap  Island  to  Guam 
Island,  and  from  Yap  Island  to  Menado. 

If  it  were  not  for  the  action  of  the  Council  of  Three, 
there  could  be  no  doubt  that  by  the  adoption  of  the 
peace  treaty  the  title  and  sovereignty  of  all  the  German 
colonies  would,  under  Article  119,  be  vested  in  the 
United  States,  the  British  Empire,  France,  Italy,  and 
Japan,  as  tenants  in  common  in  equal  shares,  since  by 
Article  119  Germany  is  required  by  all  the  Allied  and 
Associated  Powers  to  renounce  all  its  oversea  possessions 
in  favor  of  the  ''Principal  Allied  and  Associated  Pow- 
ers," and  the  five  states  named  are  by  the  peace  treaty 
declared  to  be  these  "Principal"  Powers. 

Article  118,  which  requires  Germany  to  "recognize 
and  to  conform  to  the  measures  which  may  be  taken 
now  or  in  the  future  by  the  Principal  Allied  and  Asso- 
ciated Powers,  in  agreement  where  necessary  with  third 


The  German  Colonies  371 

Powers,  in  order  to  carry  the  above  stipulation  [of 
renunciation]  into  effect,"  is  exceedingly  broad  and 
far-reaching.  It  may  be  claimed  that  the  expression 
"measures  which  may  be  taken  now"  has  the  effect  of 
importing  into  the  treaty  and  making  final  any  action 
relating  to  the  German  colonies  taken  by  the  Peace 
Conference  at  any  time  prior  to  the  date  of  the  peace 
treaty,  and  thus  recognizes  and  imports  into  the  treaty 
the  distribution  made  by  the  Council  of  Three.  The 
argument  would  be,  no  doubt,  that  the  action  of  the 
"Council  of  Three"  was  an  act  of  partition  made  by 
the  Principal  Allied  and  Associated  Powers  in  expecta- 
tion of  receiving  the  title  collectively  by  Article  119  of 
the  peace  treaty,  and  that  they  made  this  partition  in 
advance  in  order  to  carry  into  effect  that  article.  The 
expression,  "measures  which  may  be  taken  now,"  is  so 
unusual  and  so  difficult  to  understand  in  this  connection 
unless  it  refers  to  the  act  of  the  Council  of  Three,  that 
prudence  demands  that  all  doubt  concerning  what  it 
means  or  implies  should  be  set  at  rest  before  the  United 
States  is  committed  to  it. 

Were  the  United  States  to  allow  the  peace  treaty  to 
be  given  such  a  construction  that  the  distributive  act 
of  the  "Council  of  Three"  would  be  imported  into  it, 
it  would  give  its  consent  to  an  act  which  it  was  not 
within  the  constitutional  power  of  the  representatives 
of  the  United  States  to  do  and  which  would  violate 
its  professed  plan,  accepted  by  the  belligerents,  that 
there  should  be  a  "free,  open-minded  and  impartial 
adjustment  of  all  colonial  claims." 

The  distribution  was  not  free  or  open-minded,  being 
made  in  pursuance  of  secret  commitments  and  under- 
standings, and  without  reference  to  the  full  Conference. 
If  the  Covenant  permits  the  British  dominions  and 
India  to  be  at  the  same  time  members  of  the  League  of 


372  The  American  Philosophy  of  Government 

Nations  as  independent  states,  with  full  voting  powers 
and  the  power  to  be  mandatories  of  the  League,  and 
at  the  same  time  allows  them  to  be  parts  of  the  British 
Empire  in  subordination  to  Great  Britain,  or  federal 
states  in  a  British  Commonwealth  under  Great  Britain 
as  presiding  and  commanding  head,  the  distribution 
was  not  impartial;  for  by  it  the  British  Empire  received 
nearly  all  that  there  was  to  be  distributed. 

If  Japan  acquires  permanently  the  islands  distributed 
to  it,  it  will  be  located  between  the  United  States  and 
the  whole  Orient;  its  insular  possessions  will  surround 
the  Philippines  and  Guam ;  its  influence  will  be  extended 
to  a  line  in  the  Pacific  hundreds  of  miles  nearer  the 
United  States;  it  will  command  Hawaii,  the  Panama 
Canal,  and  the  whole  Pacific  Coast.  In  case  a  properly 
organized  League  of  Nations  should  decide  that  it 
would  be  fair  to  dispose  of  all  Germany's  colonies  and 
give  Germany  no  mandate  whatever,  and  in  case  back- 
ward regions  not  its  colonies  should  be  allotted  to  the 
various  members  of  the  League,  the  proper  mandatory 
for  the  Pacific  Islands  north  of  the  equator  would  un- 
questionably be  the  United  States.  Nothing  should  be 
allowed  to  check  the  development  of  the  Philippines 
along  the  lines  the  United  States  has  wisely  laid  out 
and  successfully  followed.  No  self-denying  professions 
made  in  its  behalf  can  properly  be  allowed  to  interfere 
with  any  action  having  for  its  object  the  prevention  of 
the  present  distribution  from  becoming  permanent.  It 
is  the  first  duty  of  a  state  to  protect  itself  and  its  wards. 


JUDICATIVE  CONCILIATION 


373 


JUDICATIVE  CONCILIATION 

Reprinted  from  Judicial  Settlement  of  International  Disputes, 
February,  19 16. 

ON  the  night  of  October  21st,  1904,  during  the 
Russo-Japanese  war,  Russian  warships,  pro- 
ceeding down  the  North  Sea  in  a  mist,  fired 
upon  British  trawlers  at  a  fishing  ground  off  the  North- 
umberland coast,  called  "the  Dogger  Bank";  sinking 
or  injuring  some  of  these  peaceful  fishing  vessels  and 
killing  or  wounding  a  number  of  British  citizens  who 
were  members  of  the  crews.  The  excuse  was  that  the 
officers  of  the  Russian  ships  believed  that  the  trawlers 
were  Japanese  torpedo  boats.  After  a  short  period  of 
excitement,  during  which  the  incident  threatened  to 
bring  Great  Britain  and  Russia  into  war  with  each 
other,  a  process  of  pacific  settlement  was  agreed  upon 
and  a  treaty  signed  embodying  this  agreement.  The 
treaty  recited  that  the  British  and  Russian  govern- 
ments had  ''agreed  to  intrust  to  an  International  Com- 
mission of  Inquiry,  assembled  conformably  to  Articles 
IX  to  XIV  of  the  Hague  Convention  of  the  29th  (17th) 
July,  1899,  ^or  the  Pacific  Settlement  of  International 
Disputes,  the  task  of  elucidating  by  means  of  an  impar- 
tial and  conscientious  investigation  the  questions  of 
fact  connected  with  the  incident  which  occurred  during 
the  night  of  the  2ist-22nd  (8th-9th)  October,  1904,  in 
the  North  Sea."  (Declaration  between  the  United 
Kingdom  and  Russia,  relating  to  the  Constitution 
of  an   International   Commission  of  Inquiry   on   the 

375 


37^  The  American  Philosophy  of  Government 

subject  of  the  North  Sea  Incident.  British  Parlia- 
mentary Papers,    1905,   vol.  ciii,  p.  361,   (Cd.   2328). 

The  document  was  executed  November  25th,  1904.) 

The  tribunal  was  to  consist  of  five  members — one  an 
officer  of  high  rank  in  the  British  navy,  one  an  officer 
of  high  rank  in  the  Russian  navy;  the  governments  of 
France  and  the  United  States  were  each  to  select  one 
of  their  naval  officers  of  high  rank,  and  the  fifth  member 
was  to  be  chosen  by  these  four. 

If  the  treaty  had  contained  no  other  provision  than 
these,  there  could  have  been  no  doubt  that  the  proceed- 
ing was  one  of  ''inquiry,"  as  defined  by  the  Hague 
Convention  for  Pacific  Settlement,  since  the  treaty 
follows  almost  exactly  the  words  of  Article  IX.  The 
words  there  used  as  defining  the  function  of  a  "com- 
mission of  inquiry"  are  "to  facilitate  a  solution  of  these 
differences  by  elucidating  the  facts  by  means  of  an 
impartial  and  conscientious  investigation."  It  is  true 
that  Article  IX  recommends  a  commission  of  inquiry 
only  in  disputes  "involving  neither  honor  nor  vital 
interests,"  but  this  is  clearly  a  restriction  which  dis- 
putant nations  may  waive. 

But  the  treaty  went  farther  and  conferred  on  the 
commission  additional  functions.    Its  words  were: 

"The  commission  shall  inquire  into  and  report  on 
all  the  circumstances  relative  to  the  North  Sea  inci- 
dent, and  particularly  on  the  question  as  to  where  the 
responsibility  Hes,  and  the  degree  of  blame  attaching 
to  the  subjects  of  the  two  high  contracting  parties,  or 
to  the  subjects  of  other  countries  in  the  event  of  their 
responsibility  being  estabHshed  by  the  inquiry." 

The  commission  was  formed,  and  made  a  finding  con- 
cerning both  the  facts  and  the  liability.  The  finding 
was  adverse  to  Russia  on  the  question  of  responsibility, 
and  largely  favorable  to  Russia  on  the  question  of 


Judicative  Conciliation  377 

blame  to  be  attached  to  the  Russian  officers.  (North 
Sea  Incident.  International  Commission  of  Inquiry. 
Despatch  from  the  British  Agent  forwarding  the 
Report  of  the  Commissioners.  British  Parliamen- 
tary Papers,  1905,  vol.  ciii,  p.  437,  (Cd.  2382).  Both 
parties  accepted  the  finding,  and  the  matter  was  peace- 
fully and  satisfactorily  settled. 

The  case  is  generally  cited  by  writers  on  international 
law  as  an  example  of  settlement  by  a  ''commission  of 
inquiry";  but  inasmuch  as  the  commission  was  given 
jurisdiction  to  find  the  facts  and  also  to  render  an  ad- 
visory judgment  locating  the  responsibility  and  de- 
termining the  degree  of  blame,  a  question  arises  con- 
cerning the  nature  of  the  proceeding.  Is  such  a  process 
of  settlement  properly  to  be  regarded  as  one  of  "in- 
quiry" within  the  meaning  of  the  Hague  Convention 
for  Pacific  Settlement,  or  should  it  be  classified  under 
some  other  heading  ? 

The  Convention  states  (in  Article  XIV  of  the  original 
Convention  of  1899,  and  in  substantially  the  same 
language  in  Article  XXXV  of  the  revised  Convention 
of  1907),  that  "the  report  of  an  international  commis- 
sion of  inquiry  is  limited  to  a  statement  of  facts,  and 
has  in  no  way  the  character  of  an  arbitral  award," 
and  that  ''it  leaves  the  conflicting  powers  entire  freedom 
as  to  the  effect  to  be  given  to  this  statement."  While 
the  function  of  an  "international  commission  of  inquiry" 
is  thus  apparently  limited  to  making  a  finding  of  facts, 
nevertheless  Article  X  of  the  Convention  states  that 
the  agreement  of  the  parties  "defines  the  facts  to  be 
examined  and  the  extent  of  the  commissioners'  powers." 
It  requires  a  liberal  interpretation  of  the  words  "de- 
fines the  extent  of  the  commissioners'  powers"  to  find 
in  them  a  warrant  for  a  commission  of  inquiry  making 
not  only  a  finding  of  facts,  but  also  a  finding  regarding 


378  The  American  Philosophy  of  Government 

the  liability,  which  is  in  effect  an  advisory  judgment. 
However,  the  treaty  above  quoted  between  Great 
Britain  and  Russia  clearly  so  interpreted  Article  X, 
since  it  declares  that  the  commission  is  "assembled 
conformably  to  Articles  IX  to  XIV  of  the  Convention," 
and  an  interpretation  made  by  the  British  and  Russian 
governments  is  entitled  to  great  weight.  (The  official 
correspondence  relating  to  the  North  Sea  Incident 
shows  that  the  draft  of  the  treaty  proposed  by  Lord 
Landsdowne,  in  behalf  of  the  British  government, 
stated  in  the  preamble  that  the  parties  agreed  ''that 
the  elucidation  of  the  questions  in  dispute  shall  be 
referred  to  an  International  Commission  of  Inquiry 
analogous  to  that  provided  for  in  Articles  IX  to  XIV 
of  the  Convention,"  etc.,  and  contained  substan- 
tially the  same  language  as  was  finally  adopted  re- 
quiring the  commission  to  report  on  the  responsibility 
and  the  degree  of  blame;  that  the  Russian  government, 
through  Count  Lamsdorff,  proposed  a  draft  with  a 
preamble  stating  that  the  commission  was  to  be  as- 
sembled ''conformably  to"  (conformement  aux)  these 
articles,  and  providing  that  the  commission  should 
fix  the  responsibility;  that  five  days  afterwards  Count 
Lamsdorff  telegraphed  stating  that  on  the  advise  of 
Russian  jurists  (among  them  M.  de  Martens)  he  had 
come  to  the  conclusion  that  the  provision  of  the  British 
draft  requiring  the  commission  to  fix  the  responsibility 
and  the  degree  of  blame  was  "contrary  to  sense  of 
stipulation  of  Hague  Convention  relating  to  appoint- 
ment of  a  commission  of  inquiry";  to  which  Lord 
Lansdowne  replied,  calling  attention  to  the  fact 
that  the  British  draft  used  the  word  "analogous" 
and  that  the  Russian  draft  had  provided  for  the  com- 
mission fixing  the  responsibility,  and  asserting  that 
it  could  not  "possibly  be  contended  that  the  question 


Judicative  Conciliation  379 

of  responsibility  is  a  question  of  fact  but  that  the  ques- 
tion of  blame  is  not."  Lord  Lansdowne  further  said 
that  the  opinion  of  the  British  government  was  that 
the  ''question  of  responsibility  and  question  of  blame 
are  both  questions  of  fact,"  and  that  the  word  "anal- 
gous"  was  used  in  the  British  draft  "for  greater 
security  in  order  to  meet  the  kind  of  objection" 
raised  by  the  Russian  government. 

Correspondence  relating  to  the  North  Sea  Incident, 
British  Parliamentary  Papers,  1905,  vol.  ciii,  p.  369, 
(Cd.  2350),  Nos.  43,  72,  76,  ^^,  ^%) 

This  novel  and  extraordinary  proposition  of  the 
British  government,  that  questions  of  responsibility 
and  degree  of  blame  are  questions  of  fact,  was  evi- 
dently advanced  as  a  diplomatic  means  of  solving  a 
difficulty  which  threatened  to  halt  the  negotiations. 
The  correspondence  immediately  following  that  above 
referred  to  shows  that  Russia  insisted  that  it  would 
submit  the  dispute  only  to  a  commission  of  inquiry 
assembled  conformably  to  The  Hague  Convention, 
and  Great  Britain  that  it  would  submit  it  only  to 
a  commission  which  should  determine  the  responsi- 
bility and  the  degree  of  blame.  Finally  a  compro- 
mise was  reached  by  adding  the  provision  extending 
the  inquiry  so  as  to  include  an  investigation  concern- 
ing the  responsibility  of  the  subjects  of  other  powers; 
by  calling  the  instrument  a  "Declaration"  and  having 
it  signed  at  St.  Petersburg;  and  by  making  a  joint 
stipulation  before  signing  that  * '  should  the  instrument 
about  to  be  signed  prove  in  any  way  inconsistent 
with  the  stipulations  of  the  Hague  Convention  in- 
cluded in  Articles  IX  to  XIV,  the  articles  of  the 
instrument  shall  be  held  to  override  those  of  the 
Hague  Convention." 

Ihid.  Nos.  %2,  83,  84,  88,  90. 


380  The  American  Philosophy  of  Government 

The  proposition  that  the  questions  of  responsibiHty 
and  degree  of  blame  are  "questions  of  fact"  within 
the  meaning  of  the  Hague  Convention  seems  thus  to 
have  been  regarded  as  untenable,  and  to  have  been 
abandoned.  The  result  of  the  whole  correspondence 
is  to  leave  it  doubtful  whether  the  parties  themselves 
regarded  the  treaty  as  providing  for  the  process  of  ''in- 
quiry" mentioned  in  the  Hague  Convention.  Count 
Lamsdorff  well  summed  up  the  situation  when  he 
said,  at  the  end  of  the  negotiations,  that  ''the  views 
of  the  two  governments  are  really  identical,  since  the 
recommendations  of  the  Hague  Conference  were 
accepted  by  both  as  the  basis  of  the  commission 
of  inquiry,  while  he  fully  realized  the  advantage  of 
extending  the  competency  of  the  court."  That  is  to 
say,  both  governments  accepted  the  principle  under- 
lying the  process  of  "inquiry"  as  determined  in  the 
Hague  Convention,  and  instead  of  making  the  restricted 
application  of  this  principle  which  is  made  by  Articles 
IX  and  XIV  of  the  Convention,  gave  it  an  extended 
application  under  the  authority  of  Article  X,  by  an 
agreement  which  was  also  a  "Declaration";  thus 
interpreting  the  Convention  according  to  its  spirit, 
though  contrary  to  its  letter.)  If,  however,  this  in- 
terpretation is  to  be  adopted,  it  would  seem  to  be 
clear  that  the  Hague  Convention  really  makes  pro- 
vision for  two  kinds  of  "commissions  of  inquiry" — a 
"commission  of  inquiry"  in  the  strict  sense  and  a  com- 
mission of  inquiry  in  another  sense.  It  is  the  purpose 
of  this  paper  to  consider  with  some  care  the  nature  of 
the  process  of  settlement  applied  in  the  North  Sea 
Incident,  and  the  possibilities  of  the  process  as  a  means 
of  settling  international  disputes. 

In  the  first  place,  it  is  to  be  noticed  that  the  Hague 
Convention  for  Pacific  Settlement,  in  Article  IX,  above 


Judicative  Conciliation  381 

quoted,  asserts  that  the  primary  function  of  a  com- 
mission of  inquiry  is  not  merely  to  find  the  facts  in  the 
case,  but  **to  facilitate  a  solution"  of  the  "differences." 
The  solution  of  the  differences  is  to  be  facilitated  "by 
elucidating  the  facts  by  means  of  an  impartial  and  con- 
scientious investigation."  The  Hague  Convention  also 
states,  in  Article  XIV,  above  quoted,  that  the  disput- 
ants have  "entire  freedom  as  to  the  effect  to  be  given 
to  this  statement  [of  facts]" — that  is  to  say,  the  dis- 
putants are  free  to  accept  or  reject  the  action  of  the 
commission  of  inquiry,  or  to  accept  it  in  part.  Any 
dispute,  therefore,  which  is  settled  by  a  commission  of 
inquiry  is  settled  by  the  agreement  of  the  disputants, 
and  the  only  function  of  the  commission  of  inquiry  is 
to  "facilitate  the  solution" — that  is,  to  aid  the  disput- 
ants, by  conciliation,  to  settle  their  differences  them- 
selves by  their  own  agreement. 

Every  commission  of  inquiry,  therefore,  has  for  its 
primary  purpose  the  conciliation  of  the  parties.  It  is 
restricted  in  its  conciliative  function  to  the  use  of 
judicative  methods.  It  leaves  the  parties  free  to  act; 
and  if  the  dispute  is  settled,  it  is  their  own  agreement, 
induced  by  the  conciliation  or  not,  as  the  case  may  be, 
which  settles  it.  The  process  called  "inquiry"  in  the 
Hague  Convention  may,  therefore,  it  would  seem,  ap- 
propriately be  described  as  a  process  of  judicative 
conciliation.  If  the  commission  merely  finds  the  facts, 
the  process  is  thus  an  incomplete  process  of  judicative 
conciliation.  If  the  commission  makes  a  finding  of  the 
material  facts  and  also  gives  an  advisory  opinion  con- 
cerning the  liability  on  the  facts  so  found,  it  is  a  com- 
plete and  perfect  process  of  judicative  conciliation. 

Judicative  conciliation  is  to  be  distinguished  from 
either  arbitration  or  the  judicial  action  of  a  court.  A 
commission  of  judicative  conciliation,  whether  in  the 


382  The  American  Philosophy  of  Government 

imperfect  form  described  in  Article  XIV  of  the  Hague 
Convention  or  in  the  perfect  form  as  manifested  by  the 
tribunal  in  the  North  Sea  Incident,  differs  from  a  tri- 
bunal of  arbitration  in  this:  The  finding  of  facts  and 
the  judgment  or  opinion  of  a  tribunal  of  judicative 
conciliation  are  advisory  only,  and  the  parties  are  free 
to  accept  or  reject  them,  so  that  it  is  the  parties  them- 
selves who  finally  settle  the  matter  by  their  voluntary 
agreement ;  whereas  arbitration  implies  an  obligation  of 
the  parties  to  accept  and  faithfully  carry  into  effect 
the  award  of  the  arbitration  tribunal.  Article  XVII  of 
the  Hague  Convention  places  this  obligative  feature 
of  arbitration  beyond  doubt,  since  it  states  that  **the 
arbitration  convention  implies  the  engagement  to  sub- 
mit loyally  to  the  award."  This  characteristic  of 
arbitration  was  made  still  more  clear  in  the  revision 
of  the  Convention  for  the  Pacific  Settlement  of  Inter- 
national Disputes  made  by  the  Hague  Conference  of 
1907.  In  Article  XXXVII  of  the  revised  Convention 
it  was  declared  that  ''recourse  to  arbitration  im- 
plies an  engagement  to  submit  in  good  faith  to  the 
award." 

In  political  literature  dealing  with  the  pacific  settle- 
ment of  international  disputes,  and  in  economic  legis- 
lation and  literature  dealing  with  the  pacific  settlement 
of  collective  industrial  disputes,  there  has  been  until 
recently  much  confusion  of  definition  in  the  use  of 
the  words  "conciliation,"  "arbitration"  and  "media- 
tion." It  seems  to  the  writer  that  the  following  may 
be  taken  as  the  proper  definitions  of  each  of  these 
terms  according  to  the  best  modern  usage: 

Conciliation  is  the  interposition  between  disput- 
ants, by  their  consent  or  acquiescence,  of  a  third  per- 
sonality, whose  function  it  is  to  facilitate  the  solution 
of  the  difference  in  such  manner  as  may  be  appropriate 


Judicative  Conciliation  383 

to  the  case,  so  that  the  parties  may  agree  upon  a 
settlement. 

Arbitration  is  the  interposition  between  disputants, 
by  their  consent,  of  a  third  personality,  whose  function 
it  is  to  ascertain  the  facts  and  to  make  an  award  by 
applying  to  the  facts  so  found  established  rules  ac- 
cepted by  or  agreed  upon  by  the  parties  and  the  society 
of  which  the  parties  are  members ;  the  parties  being  ob- 
ligated to  accept  the  award. 

The  conciliating  or  arbitrating  personality  may  be 
a  person,  a  personality,  or  a  body  of  persons  or  per- 
sonalities, wholly  external  to  the  disputants,  or  (if 
the  disputants  are  collective  persons)  partly  external 
to  them  and  partly  internal  to  them,  or  wholly  in- 
ternal to  them.  That  is  to  say,  the  conciliator  or 
arbitrator  between  disputant  nations  or  other  societies 
may  be  a  third  nation  or  society,  an  individual  who 
is  a  foreigner,  or  a  body  of  individuals  all  of  whom 
are  foreigners;  or  it  may  be  a  body  of  individuals  part 
of  whom  are  foreigners  and  part  citizens  or  members 
of  the  disputants ;  or  it  may  be  a  joint  committee  com- 
posed wholly  of  citizens  or  members  of  the  disputants. 

Mediation  is  a  species  of  conciliation  distinguished  by 
the  fact  that  the  conciliating  personality  is  a  person, 
or  a  society,  or  a  nation,  regarded  as  co-ordinate  or 
equal  in  status  with  the  disputants.  Thus  only  a 
nation  can  be  said  to  "mediate"  between  na?  Sns. 
Only  a  society  of  the  same  kind  and  rank  can  ' '  med^  ,te  " 
between  other  societies.  Only  an  individual  wlh  is 
recognized  as  a  social  equal  can  ''mediate"  between 
individuals.  Conciliation  by  a  personality  superior  to 
the  disputants,  or  by  an  agency  of  the  disputants,  is 
thus  never  properly  to  be  spoken  of  as  "mediation." 
This  "engagement"  or  obligation  is  not  only  of  each  of 
the  disputa  nt  nations  to  the  other,  br^  of  each  of  them 


384  The  American  Philosophy  of  Government 

to  the  society  of  nations.  Arbitration,  therefore,  can- 
not properly  be  classified  as  a  conciliative  process.  This 
essential  feature  of  implied  obligation  to  accept  the 
award,  even  if  it  does  not  require  arbitration  to  be 
classified  as  a  compulsive  process,  since  the  nations  are 
free  to  arbitrate  or  not  to  arbitrate,  nevertheless  dis- 
tinguishes arbitration  from  judicative  conciliation. 

A  commission  of  judicative  conciliation  is  clearly 
different  from  a  court.  A  court  is  the  judicial  organ  of  a 
society  organized  compulsively  as  a  state.  A  court  exists 
and  acts  under  the  constitution  and  laws  of  the  state 
and  has  the  function  of  finding  the  facts  in  cases 
duly  brought  before  it  and  of  applying  to  the  finding 
of  facts  the  principles  established  by  the  state  as  its 
law.  A  court  implies  a  legislature  and  an  executive, 
and  a  constabulary  under  their  control  to  enforce  the 
laws,  the  executive  decrees,  and  the  judgment  of  the 
court.  A  court,  therefore,  is  an  organ  of  a  society 
organized  on  the  principle  of  compulsion,  for  the  pur- 
pose of  applying  compulsion  like  any  other  organ  of 
the  state.  Judicial  action  and  judicative  conciliation 
are,  therefore,  distinct  from  each  other. 

If  the  reader  is  willing  to  grant,  for  the  sake  of  argu- 
ment, that  there  is  a  distinction  between  judicative 
conciliation,  arbitration  and  the  judicial  action  of  a 
court,  and  that  judicative  conciliation  is  also  practicable 
as  5jvanifested  by  the  settlement  in  the  North  Sea 
Inc  4ent,  and  in  a  less  perfect  way  by  the  various 
settlements  which  have  been  made  by  the  aid  of  com- 
missions of  inquiry  in  the  strict  sense,  he  will  perhaps 
be  willing  to  consider  the  suggestions  made  in  the  fol- 
lowing pages  concerning  the  form  of  organization  of  the 
society  of  nations  to  which  judicative  conciliation,  as 
a  process,  properly  belongs,  and  concerning  the  use 
which  may  be-e^ade  of  judicative  conciliation  by  the 


Judicative  Conciliation  385 

society  of  nations  as  a  process  of  pacific  (and  in  a 
sense,  judicial)  settlement  of  international  disputes. 

First,  let  us  premise  that  every  form  of  settlement 
of  international  disputes  which  is  really  pacific  is,  in 
the  last  analysis,  not  a  process  of  settlement  by  the 
parties,  but  by  the  society  of  nations.  Every  nation 
which  mediates  between  disputant  nations,  even  by 
their  request,  represents  the  dignity  and  the  advisory 
influence  of  the  society  of  nations;  so  does  every  com- 
mission of  inquiry  instituted  by  disputant  nations;  so 
does  every  arbitration  tribunal  instituted  by  disputant 
nations,  whether  the  arbitrators  be  selected  from  the 
Permanent  International  Court  of  Arbitration  or  with- 
out reference  to  the  panel  of  that  court;  so  does  every 
court  which  sits  in  a  dispute  between  nations,  whether 
it  be  a  court  instituted  by  one  nation,  by  several  na- 
tions, by  all  nations,  or  by  the  society  of  nations.  Every 
process  for  settling  international  disputes  judicially, 
therefore,  is  a  process  whereby  the  society  of  nations 
acts  as  a  judicative  conciliator,  or  as  an  arbitrator,  or 
as  a  judge;  and  every  commission  of  inquiry  or  judica- 
tive conciliation,  every  tribunal  of  arbitration,  and 
every  court  convened  for  the  settlement  of  an  inter- 
national dispute,  represents  in  itself  the  dignity,  the 
advisory  influence  and  the  interests  of  the  society  of 
nations. 

Assuming  it  to  be  granted  that  all  the  processes  and 
organs  of  pacific  settlement  are  really  processes  of  the 
society  of  nations,  the  question  arises  whether  judica- 
tive conciliation,  arbitration  and  judicial  action  are 
processes  of  the  society  of  nations  conceived  of  as 
existing  under  one  single  form  of  organization  or  are 
processes  of  the  society  of  nations  conceived  of  as 
existing  under  different  forms  of  organization.  It  is 
the  opinion  of  the  writer  that  the  latter  view  is  correct, 
as 


386  The  American  Philosophy  of  Government 

A  careful  examination  of  the  subject  will,  it  is  believed, 
result  in  the  conclusion  that  judicative  conciliation  is  a 
process  of  the  society  of  nations  conceived  of  as  a 
purely  voluntary  and  cooperative  organization,  that 
the  process  of  judicial  action  in  the  strict  sense  is  a 
process  of  the  society  of  nations  conceived  of  as  a 
compulsive  organization  and  as  a  federal  state,  and  that 
the  form  of  organization  of  the  society  of  nations  to 
which  the  process  of  arbitration  ought  to  be  referred 
will  depend  on  whether  the  obligation  of  the  disputants 
to  abide  by  the  award  is  one  of  honor  merely  or  is 
enforced  by  the  society  of  nations. 

In  order  to  determine  this  question  it  is  necessary  to 
consider  what  is  meant  at  the  present  time  by  vol- 
untary or  cooperative  organization.  The  principal 
sources  of  information  on  this  subject  are  the  reports  of 
commissions  on  industrial  organization  and  books 
dealing  with  the  so-called  "cooperative  movement"  in 
industry  and  the  methods  of  preventing  strikes  by 
bringing  about  the  pacific  settlement  of  collective  in- 
dustrial disputes.  A  study  of  the  writings  on  this 
subject  seems  to  warrant  the  conclusion  that  the 
voluntary  or  cooperative  organization  is  now  accepted 
as  one  of  the  two  great  forms  of  organization ;  the  other 
being  the  compulsive  form.  It  seems  also  to  be  settled 
that  the  cooperative  form  of  organization,  whether 
applied  in  the  industrial,  the  social  or  the  political 
world,  depends  upon  the  coherence  of  the  units,  grow- 
ing out  of  their  perception  and  belief  that  it  is  for  their 
self-interest  to  cohere.  The  self-interest  of  each  unit  in 
cohering  with  the  other  units  arises  from  their  percep- 
tion of  and  belief  in  the  principle  that  humanity  is  so 
constituted  that  each  human  unit  can  obtain  more  for 
his  development  and  happiness  by  taking  his  due  share 
of  the  result  of  organized  cooperative  effort  in  which 


Judicative  Conciliation  387 

he  duly  participates  than  he  can  possibly  obtain  by 
his  own  isolated  and  unaided  effort,  and  vastly  more 
than  he  can  obtain  by  effort  directed  to  competition 
or  other  form  of  struggle  or  warfare.  What  is  true  of 
the  original  human  unit — the  individual — is  also  true 
of  the  derivative  and  artificial  human  unit — the  nation. 
If  each  nation,  like  an  individual,  perceives  and  believes 
that  it  can,  in  the  long  run,  by  a  primeval,  universal  and 
unalterable  law  of  God,  obtain  more  for  its  development 
and  happiness  by  taking  its  due  share  of  the  cooperative 
effort  of  a  cooperatively  organized  society  of  nations, 
than  it  can  possibly  obtain  by  its  isolated  and  unaided 
effort  or  by  its  effort  directed  towards  competition 
with  other  nations  involving  struggle  and  warfare,  it 
will,  as  a  matter  of  self-interest,  organize  itself  coop- 
eratively with  other  nations  so  that  all  will  form  a 
cooperative  organization,  and  it  will  cohere  with  the 
others  in  the  organization  out  of  its  own  self-interest. 
Therefore,  the  cooperative  form  of  organization  is  in 
the  highest  sense  reasonable  and  practicable. 

In  the  cooperative  form  of  organization,  self-interest 
induces  the  members  to  cohere  and  to  perfect  the  or- 
ganization as  a  means  of  advancing  their  own  self- 
interest  .  They  therefore  settle  their  disputes  pacifically. 
Not  only  does  the  organization  and  its  object  of  mutual 
benefit  give  them  a  desire  to  cooperate  peacefully 
and  a  standard  by  which  they  can  settle  their  disputes, 
but  every  dispute  appears  to  them  as  an  obstruction 
to  the  working  of  the  mutual  benefit  organization,  and 
therefore  contrary  to  the  self-interest  of  every  member. 
As  the  result  to  be  obtained  in  the  settlement  of  dis- 
putes is  cooperation,  and  as  cooperation  implies  vol- 
untary action  impelled  by  self-interest,  all  settlements 
of  disputes  in  societies  which  have  the  cooperative 
form  of  organization  take  place  by  conciliation. 


388  The  American  Philosophy  of  Government 

Cooperative  organization  is,  therefore,  based  on 
conciliation,  and  peace  and  cooperative  organization 
are  synonymous  terms.  Though,  as  an  exceptional 
matter,  force  may  be  used,  it  can  be  used  consistently 
only  to  the  extent  that  it  aids  conciliation.  Thus, 
even  war  between  nations  may,  under  some  circum- 
stances, be  not  inconsistent  with  the  cooperative  (and 
therefore  peaceful)  organization  of  the  society  of 
nations.  If  it  is  in  aid  of  conciliation  and  cooperation, 
it  may  be  justifiable.  The  fact  that  force  may  thus  be 
used  in  a  cooperative  organization  does  not,  however, 
alter  the  fundamental  principle  that  all  the  processes 
of  the  cooperative  organization  of  the  society  of  nations, 
which  is  the  only  peaceful  form,  are  conciliative. 

If  this  be  granted,  judicative  conciliation  appears  as 
a  process  of  the  society  of  nations  conceived  of  as  a 
cooperative  organization,  which  is,  in  fact,  a  coopera- 
tive federation  of  nations.  The  primary  process  in  the 
society  of  nations  conceived  of  as  cooperatively  or- 
ganized is,  of  course,  negotiative  conciliation.  This  is 
manifested  continually  by  the  action  of  secretaries  of 
foreign  affairs  and  diplomats  who  represent  each  his 
own  nation  and  the  society  of  nations  in  finding  a 
means  of  settling  disputes  between  nations  consistently 
with  the  cooperative  organization  of  the  society  of 
nations.  It  is  manifested  also  in  acts  of  mediation  of 
nations  between  disputant  nations.  The  second  process 
in  the  society  of  nations  conceived  of  as  cooperatively 
organized  is  judicative  conciliation.  The  third  process 
is  that  of  formulating  rules  of  the  society  of  nations 
to  determine  future  action  and  relationship  between 
nations,  so  that  they  may  preserve  the  cooperative 
organization  and  so  that  the  organs  of  judicative  con- 
ciliation may  have  established  rules  to  interpret  and 
apply.     This  process  (which  may  perhaps  be  described 


Judicative  Conciliation  389 

as  regulative  conciliation)  is  now  carried  on  in  various 
antiquated  and  informal  ways  through  the  writings  of 
publicists,  the  proceedings  of  societies  of  international 
law,  etc.  The  society  of  nations,  conceived  of  as  a  co- 
operative federation  of  nations,  thus  manifests  itself 
through  the  major  processes  of  negotiative,  judicative 
and  regulative  conciliation,  and  is  a  voluntary  organi- 
zation. The  society  of  nations,  conceived  of  as  a 
state,  whether  federal  or  unitary,  manifests  itself 
through  the  major  processes  of  legislation,  judication 
and  execution,  and  is  a  compulsive  organization. 
Judicative  conciliation  is,  therefore,  it  would  seem,  one 
of  the  three  major  processes  of  the  society  of  nations, 
conceived  of  as  organized  on  the  voluntary  and  co- 
operative plan. 

The  judicial  process  of  action  in  disputes  between 
nations,  regarded  as  a  process  of  the  society  of  nations, 
is,  it  would  seem,  clearly  to  be  regarded  as  a  process  of 
the  society  of  nations  conceived  of  as  organized  into  a 
federal  state — that  is  to  say,  conceived  of  as  organized  on 
the  compulsive  and  state  plan  and  not  on  the  voluntary 
and  cooperative  plan.  If  this  be  true,  the  application  of 
the  judicial  process  in  the  settlement  of  international  dis- 
putes seems  to  imply,  in  the  long  run,  not  only  a  federal 
court  of  the  society  of  nations,  but  a  federal  legislature 
and  executive,  together  with  a  federal  constabulary  as 
a  means  of  enforcing  the  federal  legislative,  executive 
and  judicial  action.  The  process  of  judicial  action  in 
disputes  between  nations  is,  therefore,  it  would  seem, 
properly  to  be  regarded  as  one  of  the  three  processes 
of  the  society  of  nations  conceived  of  as  organized 
compulsively  and  as  a  federal  state. 

The  arbitral  process  in  disputes  between  nations, 
regarded  as  a  process  of  the  society  of  nations,  seems 
difficult  to  classify.     It  is  not  a  process  of  the  society 


390  The  American  Philosophy  of  Government 

of  nations  conceived  of  as  a  purely  voluntary  and  co- 
operative organization,  since  the  implied  obligation  of 
the  disputants  to  the  society  of  nations  to  accept  the 
award  gives  it  a  compulsive  quality  and  makes  it 
impossible  to  regard  it  as  a  conciliative  process.  Nor 
can  arbitration  be  regarded  as  a  process  of  the  society 
of  nations  conceived  of  as  a  federal  state,  since  the 
federal  state  does  not  enforce  the  obligation  of  the  dis- 
putants by  its  constabulary  power,  but  regards  the 
obligation  as  one  of  honor.  If  the  society  of  nations 
should  ever  enforce  by  constabulary  action  the  obliga- 
tion of  the  disputants  to  abide  by  the  arbitral  award, 
the  process  of  arbitration  would  clearly  be  a  process  of 
the  society  of  nations  organized  as- a  federal  state. 

It,  therefore,  seems  clear  that  judicative  conciliation 
and  judicial  action  by  courts  are  processes  of  two  anti- 
thetical— or,  perhaps,  complementary — forms  of  organi- 
zation, and  that  the  use  of  judicative  conciliation  in  the 
pacific  settlement  of  disputes  between  nations  implies 
that  the  society  of  nations  is  a  voluntary  and  coopera- 
tive federation  of  nations;  whereas  the  use  of  judicial 
action  of  courts  implies  that  the  society  of  nations  is  a 
federal  state,  of  which  the  nations  are  member-states. 
If  both  these  processes  were  used  by  the  society  of 
nations,  it  would  seem  necessarily  to  imply  that  its 
organization  was  one  of  a  mixed  form — partly  that  of 
a  cooperative  organization  and  partly  that  of  a  federal 
state.  It  is  perhaps  on  account  of  the  ambiguity  of  the 
process  of  arbitration  as  referable  either  to  one  form  of 
organization  or  the  other  that  it  has  become  so  well 
established.  An  ambiguous  process  which  some  may 
regard  as  voluntary  and  others  as  compulsive  seems  to 
fit  the  present  situation,  in  which  some  contend  that  the 
society  of  nations  is  a  voluntary  and  cooperative  society 
and  others  that  it  is  a  compulsive  and  federal  state. 


Judicative  Conciliation  391 

The  question  then  arises  whether  those  interested  in 
international  political  science  should  not  study  and 
promote  judicative  conciliation,  as  well  as  arbitration 
and  strictly  judicial  action.  As  has  been  said,  an  arbi- 
tral tribunal,  though  in  most  respects  voluntary  and 
conciliative,  is  in  one  respect  obligatory  and  compulsive, 
since  nations  which  agree  to  arbitrate  thereby  bind 
themselves  in  honor  to  each  other  and  to  the  society 
of  nations  to  accept  the  award,  whether  they  believe 
it  to  be  just  or  unjust,  and  whether  or  not  they  believe 
they  are  violating  their  own  proper  self-interest  and 
the  interest  of  the  society  of  nations  in  so  doing.  Na- 
tions are  cautious  about  so  submitting  to  an  external 
judgment,  and  therefore  arbitration  may,  in  the  long  run, 
possibly  be  found  to  be  useful  principally  for  settling  dis- 
putes between  nations  which  are  of  minor  importance. 
A  court  of  the  society  of  nations  would  seem  to  imply 
a  compulsive  form  of  organization  of  the  society  of  na- 
tions and  to  involve,  in  the  long  run,  the  transformation 
of  the  society  of  nations  into  a  federal  state  in  which  the 
nations  would  be  member-states,  with  a  federal  legis- 
lature, executive  and  constabulary  in  addition  to  the 
federal  court.  This  seems  clearly  to  be  beyond  the 
range  of  practical  politics,  even  if  its  desirability  should 
be  granted.  Undoubtedly  so  far  as  the  society  of 
nations  can  be  said  to  have  any  organization,  or  any 
constitution,  at  the  present  time,  the  prevailing  prin- 
ciple of  that  organization  is  cooperation  through  the 
wholly  voluntary  coherence  of  the  nations,  based  on  the 
perception  and  belief  that  it  is  for  their  self-interest 
to  cohere  and  cooperate.  The  society  of  nations  thus 
conceived  of  as  existing  exercises,  and  is  expected  by  the 
nations  to  exercise,  only  an  advisory  influence,  concili- 
ating the  nations  by  its  advice  given  through  organs 
which  it  constitutes  or  sanctions.    It  would  seem  wise, 


392  The  American  Philosophy  of  Government 

therefore,  to  study  the  imperfect  conciliative  processes 
of  the  present  cooperative  federation  of  nations  with 
a  view  to  perfecting  them,  having  in  mind  that  it  may 
be  found  necessary  to  relegate  arbitration  to  the  posi- 
tion of  a  minor  and  subsidiary  process  of  pacific  settle- 
ment, and  to  postpone  the  plans  for  the  establishment 
of  a  court  until  it  shall  become  evident  that  the  nations 
of  the  world  are  ready  to  form  themselves  into  a  federal 
state  and  provide  themselves  with  a  federal  legislature 
and  executive,  as  well  as  a  federal  court,  and  with  a 
federal  constabulary  to  enforce  the  federal  laws,  the 
federal  executive  action  and  the  judgments  of  the  fed- 
eral court.  Such  a  study  would  involve  the  acceptance 
of  judicative  conciliation  as  a  major  process  of  the  co- 
operative organization  of  the  nations,  and  this  process 
would  be  studied  along  with  the  other  two  major 
processes  of  negotiative  conciliation  and  regulative 
conciliation. 

Even  through  the  gloom  which  the  present  war  has 
cast  over  the  whole  world  we  see  cooperative  organi- 
zation— now  partly  turned  to  war  uses  and  partly 
directed  toward  peaceful  control  of  the  material  and 
human  forces  of  the  universe  to  the  mutual  benefit  of 
the  nations  and  their  people — making  wonderful  prog- 
ress everywhere.  In  the  industrial  world,  before  the 
war,  cooperation  already  had  become  firmly  estab- 
lished. Great  industrial  societies  and  groups  were  or- 
ganized in  all  the  nations  on  the  voluntary  and  coop- 
erative basis  and  settled  their  disputes  by  conciliative 
processes  through  conciliative  organs .  E  ach  progressive 
nation  itself  cooperated  in  the  cooperative  industrial 
organization  and  sanctioned  and  encouraged,  or  insti- 
tuted, all  kinds  of  processes  and  organs  of  conciliation. 
After  the  war,  it  seems  far  more  likely  that  the  prin- 
ciples of  cooperative   organization  will  extend  them- 


Judicative  Conciliation  393 

selves  into  the  society  of  nations  and  convert  that  soci- 
ety into  a  more  perfect  cooperative  union,  than  that 
the  nations  will  dissolve  their  present  imperfect  co- 
operative organization  and  revert  to  a  mere  aggregation 
of  competitive,  struggling  and  warring  units.  Their 
self-interest  in  cooperation,  seen  more  clearly  as  the 
result  of  the  great  war,  will  drive  them,  it  may  reason- 
ably be  hoped,  to  more  perfect  coherence  and  coopera- 
tion through  processes  and  organs  of  conciliation  in- 
stituted or  sanctioned  by  the  will  and  judgment  of  all 
of  them  assembled  in  general  conference. 

In  what  has  been  said  it  has  not  been  the  purpose 
to  speak  dogmatically  and  to  advocate  any  diminution 
on  the  part  of  the  members  of  the  Society  for  Judicial 
Settlement  of  International  Disputes  in  the  pressure 
for  the  settlement  of  international  disputes  by  arbitra- 
tion, or  to  weaken  the  enthusiasm  of  those  members 
who  demand  the  establishment  of  a  court  of  the  society 
of  nations.  Arbitration  is  an  established  process.  If 
nations  can  settle  their  disputes  peaceably  by  arbitra- 
tion, by  all  means  let  us  encourage  them  to  do  so.  If 
a  court  of  the  society  of  nations  can  be  established 
without  converting  the  society  into  a  federal  state,  or 
if  we  believe  such  conversion  is  practicable  and  desir- 
able, let  us  press  for  the  establishment  of  the  court. 
All  that  is  intended  to  be  said  in  this  paper  is  that  in 
the  great  work  of  promoting  the  judicial  settlement  of 
international  disputes  we  should  not  overlook  the  pos- 
sibilities which  lie  in  judicative  conciliation,  both  in  its 
imperfect  form  of  "inquiry"  under  the  definition  of 
Article  IX  of  the  Hague  Convention  for  Pacific  Settle- 
ment and  in  its  perfect  form  of  judicative  conciliation 
as  manifested  in  the  settlement  of  the  North  Sea  Inci- 
dent. It  is  always  wise  to  hold  fast  to  all  that  has 
proved  itself  good  in  many  instances;  therefore,  we 


394  The  American  Philosophy  of  Government 

must  hold  fast  to  arbitration.  It  is  also  wise  sometimes 
to  plan  for  a  revolutionary  change.  Therefore,  we  may 
plan  for  a  court  of  the  society  of  nations;  though  the 
burden  is  in  that  case  on  us.  But  it  is  certainly  also 
wise  to  hold  in  mind  and  consider  carefully  that  which 
has  proved  good  even  in  one  case;  for  it  may  be  that, 
if  carefully  studied  and  more  generally  appHed,  it  will 
be  found  useful  in  many  other  cases. 


THE  PROPOSED  CODIFICATION  OF  INTER- 
NATIONAL LAW  AND  THE  RELATION 
OF  CODIFICATION  TO  THE  PROPOSED 
ESTABLISHMENT  OF  A  SUPREME  IN- 
TERNATIONAL COURT  OF  ARBITRAL 
JUSTICE 


395 


THE  PROPOSED  CODIFICATION  OF  INTER- 
NATIONAL LAW  AND  THE  RELATION 
OF  CODIFICATION  TO  THE  PROPOSED 
ESTABLISHMENT  OF  A  SUPREME  IN- 
TERNATIONAL COURT  OF  ARBITRAL 
JUSTICE 

Address  delivered  at  the  Annual  Meeting  of  the  American  Society  of 

International  Law,  held  at  Washington,  April  27-29,  191 1. 

Reprinted  from  the  proceedings  of  the  Society  for  the  year  191 1. 

THE  proposal  to  establish  a  supreme  international 
court  of  arbitral  justice,  and  the  accompanying 
proposal  to  codify  international  law,  bring  up, 
as  a  preliminary  consideration,  the  question  whether 
international  law,  so-called,  is  true  law,  in  the  sense  in 
which  the  word  "law"  is  used  in  the  science  of  juris- 
prudence; and  if  so,  what  is  its  nature  and  scope  and 
its  relation  to  other  law.  A  court  of  justice  implies  the 
existence  of  law.  Codification  involves  a  scientific 
arrangement  of  principles  which  have  been  formu- 
lated in  precise  language  and  which  have  been  es- 
tablished as  laws.  When  we  use  the  word  * '  court ' '  and 
"codification"  we  are  using  terms  of  jurisprudence. 
We  cannot  establish  an  international  court  or  codify 
international  law  unless  we  can  first  establish  the  propo- 
sition that  international  law,  so-called,  is  true  law.  It 
becomes  necessary  therefore  to  consider  the  require- 
ments which  are  necessary  in  order  that  a  body  of  rules 
may  be  law,  in  the  sense  of  the  science  of  jurisprudence. 
Professor  Holland  says,  in  his  book  on  Jurisprudence 

397 


398  The  American  Philosophy  of  Government 

(nth  ed.,  pp.  88,  89.     The  first  sentence  of  the  quota- 
tion is  transposed,  but  the  meaning  is  not  changed) : 

Law  is  formulated  and  armed  public  opinion,  or  the  opin- 
ion of  the  ruling  body.  .  .  .  The  real  meaning  of  all  law- 
is  that,  unless  acts  conform  to  the  course  prescribed  by  it 
the  State  will  not  only  ignore  and  render  no  aid  to  them,  but 
will  also,  either  of  its  own  accord  or  if  called  upon,  intervene 
to  cancel  their  effects.  The  intervention  of  the  State  is 
what  is  called  the  "sanction"  of  law.  ...  [Law]  defines 
the  rights  which  it  will  aid,  and  specifies  the  way  in  which  it 
will  aid  them.  So  far  as  it  defines,  thereby  creating,  it  is 
* '  substantive  law. ' '  So  far  as  it  provides  a  method  of  aiding 
and  protecting,  it  is  "adjective  law"  or  procedure." 

Also  he  says  (page  80) : 

Law  is  something  more  than  police.  Its  ultimate  object 
is  no  doubt  nothing  less  than  the  highest  well-being  of  so- 
ciety, and  the  State,  from  which  law  derives  all  its  force,  is 
something  more  than  a  "  Rechtsversicherungsanstalt "  or 
"Institution  for  the  protection  of  rights"  as  it  has  not  in- 
aptly been  described. 

A  law — that  is,  a  particular  law,  as  distinguished 
from  the  whole  body  of  law  of  a  political  society — 
Professor  Holland  defines  (page  42)  as  "a  general  rule 
of  external  human  action  enforced  by  a  sovereign  po- 
litical authority." 

Rules  of  human  action  "enforced  by  indeterminate 
authority,"  that  is,  enforced  by  the  censure  of  general 
public  opinion,  or  by  the  censure  of  the  opinion  of  a 
given  political  society,  fall,  according  to  Professor 
Holland  (page  28),  within  the  domain  of  the  science  of 
nomology,  but  not  within  that  of  the  science  of  juris- 
prudence.    ''Rules  set  by   [a  sovereign  political  au- 


Proposed  Codification  399 

thority],"  he  says  (page  41),  **are  alone  properly  called 
'laws.'" 

The  process  of  formulating  law  proceeds  in  two  gen- 
eral ways,  according  as  the  given  political  society  holds 
one  notion  or  another  of  its  relations  with  the  past.  A 
political  society  may  abide  by  custom,  and  set  up  as  its 
government  a  judicial  body — not  necessarily  repre- 
sentative of  territorial  districts — which  will  investigate 
and  ascertain  usage,  will  determine  when  usage  has 
grown  into  custom,  will  adjudicate  whether  the  custom 
is  "reasonable"  or  not,  will  formulate  reasonable  cus- 
tom in  terms  of  law,  and  will  place  the  stamp  of  au- 
thority upon  such  formation  and  make  it  law.  On 
the  other  hand,  a  political  society  may  disregard  cus- 
tomary modes  of  action  and  relationship,  and  set  up 
a  legislative  body —  usually  representative  of  terri- 
torial districts  which  will  formulate  new  rules — statutes 
— ^by  deliberative  methods.  Political  societies  in  fact 
exist  generally  under  law  which  is  in  part  customary 
and  in  part  statutory,  customary  law  being  super- 
seded by  statutory  law  in  case  of  conflict  between  them. 
As  Professor  Holland  says  (pages  60,  62) : 

The  State,  through  its  delegates  the  judges,  undoubtedly 
grants  recognition  as  law  to  such  customs  as  come  up  to  a 
certain  standard  of  general  reception  and  usefulness.  To 
these  the  Courts  give  operation,  not  merely  prospectively 
from  that  date  of  such  recognition,  but  also  retrospectively; 
so  far  implying  that  the  custom  was  law  before  it  received 
the  stamp  of  judicial  authentication.  .  .  .  The  legal 
character  of  reasonable  ancient  customs  is  to  be  ascribed,  not 
to  the  mere  fact  of  their  being  reasonable  ancient  customs, 
but  to  the  existence  of  an  express  or  tacit  law  of  the  State 
giving  to  such  customs  the  effect  of  law.  .  .  .  [The 
State]  sometimes  in  express  terms  denies  [customs  the  force 
of  law],  and  sometimes  limits  the  force  which  has  hitherto 


400  The  American  Philosophy  of  Government 

been  ascribed  to  them.  In  some  States  greater  force  has 
been  allowed  than  in  others  to  customs  as  compared  with 
express  legislation. 

From  Professor  Holland's  analysis,  it  is  to  be  con- 
cluded, that  there  are  three  elements  which  must  exist 
in  order  that  there  may  be  law  in  the  sense  of  the  science 
of  jurisprudence ;  first,  a  body  of  persons  on  a  definite 
territory  living  together  in  an  organized  political  so- 
ciety, free  from  all  control  or  free  from  control  other 
than  that  of  the  society  of  nations;  second,  a  definite 
body  of  persons  within  the  society  who  authoritatively 
formulate  into  rules  the  existing  customs  of  the  society 
or  who  authoritatively  formulate  new  rules  for  current 
exigencies  without  regard  to  custom,  or  who  perform 
both  functions;  and,  third,  a  definite  body  of  persons 
within  the  society  who  authoritatively  enforce  the  rules 
so  formulated. 

The  question  arises  whether  or  not  international  law 
so-called,  conforms  to  these  requirements,  or  whether 
we  must  exclude  international  law  from  the  science  of 
jurisprudence,  and  treat  it  as  a  part  of  the  more  in- 
clusive science  of  nomology.  In  the  latter  case,  we 
shall  be  logically  compelled  to  discontinue  the  use  of 
the  expression  ''international  law,"  and  to  substitute 
for  it  the  expression  ''international  moral  rules";  for 
in  this  view  there  is  only  a  body  of  rules  which  the 
nations  as  isolated  units  follow  as  governing  their  con- 
tacts or  conflicts,  and  which  are  enforced  by  indeter- 
minate authority,  that  is,  by  the  censure  of  public 
opinion;  moreover,  it  will  be  logically  necessary  that 
all  international  organization  shall  take  the  form  of 
popular  education  and  political  propaganda,  in  order 
that  the  popular  censure  may  be  rightly  directed.  This, 
it  is  to  be  feared,  will  lead  to  excommunication  or  boy- 
cott.    Should  this  be  the  case,  there  will  arise  inter- 


Proposed  Codification  401 

national  hatred,  malice,  conspiracy,  and  secret  war- 
fare, the  inevitable  results  of  excommunication  which 
will  be  likely  to  lead  to  international  political  chaos. 
Every  consideration  of  expediency  and  justice  favors, 
it  would  seem,  the  bringing  of  international  law  into 
the  realm  of  jurisprudence,  if  that  be  reasonably  pos- 
sible. Indeterminate  rules,  enforced  by  an  indeter- 
minate authority,  tend,  in  the  long  run,  to  create  dis- 
order and  war. 

It  seems  that,  looking  at  the  facts  of  the  political  life 
of  the  world,  it  is  reasonable  to  say  that  international 
law,  at  the  present  moment,  does  in  fact  conform  to  the 
requirements  which  Professor  Holland  so  ably  lays 
down  as  essential  to  the  conception  of  true  law.  Take 
the  first  requirement,  that  there  must  exist  a  definite 
organized  political  society.  A  political  society  exists 
when  its  people  recognize  themselves  as  united  in  a 
society;  and  it  seems  wholly  consistent  with  actual 
facts  to  say  that  the  peoples  and  nations  of  the  world 
are,  by  the  necessity  of  the  case,  and  by  their  recogni- 
tion of  their  political  unity,  united  at  the  present  mo- 
ment in  a  political  society  which  is  known  as  "the  so- 
ciety of  nations;"  that  this  political  society  exists 
under  an  unwritten  constitution  and  a  general  law; 
and  that  that  which  we  call  international  law  is  in  fact 
at  the  present  moment  a  supreme  law  emanating  from 
the  people  and  nations  of  the  society  of  nations. 

Professor  Westlake,  in  his  International  Law,  says 
(Part  I,  Peace,  Ed.  1910,  pp.  i,  6,  7): 

International  law,  otherwise  called  the  law  of  nations,  is 
the  law  of  the  society  of  states  or  nations.  .  .  .  When 
international  law  is  claimed  as  a  branch  of  law  proper,  it  is 
asserted  that  there  is  a  society  of  states  sufficiently  like  the 
state  society  of  men,  and  a  law  of  the  society  of  states  suffi- 
ciently like  state  law,  to  justify  the  claim,  not  on  the  ground 

36 


402  The  American  Philosophy  of  Government 

of  metaphor,  but  on  the  solid  ground  of  likeness  to  the  type. 
.  .  .  States  live  together  in  the  civiHzed  world  sub- 
stantially as  men  live  together  in  a  state,  the  difference 
being  one  of  machinery,  and  we  are  entitled  to  say  that 
there  is  a  society  of  states  and  a  law  of  that  society,  without 
going  beyond  reasonable  limits  in  assimilating  variant  cases 
to  the  typical  case. 

The  second  requirement,  that  there  should  be  an  au- 
thoritative formulating  body  within  the  society,  seems 
at  first  glance  to  be  an  insuperable  obstacle  to  consider- 
ing international  law  as  true  law.  When,  however, 
it  is  considered  that  the  society  of  nations  is  of  a  com- 
posite and  federalistic  character,  being  made  up  not  only 
of  the  peoples,  but  also  of  the  nations  of  the  world,  the 
difficulty  begins  to  resolve  itself.  Such  a  composite 
political  society  may  evolve  a  supreme  law  without 
having  a  specially  designated  formulating  body;  for  it 
may  be  so  constituted  that  there  may  be  an  informal 
drafting  process,  and  that  the  component  states  or 
nations  may  place  their  separate  confirmation  and  au- 
thentication upon  the  rules  formulated,  until  there 
comes  about  a  formulation  which  is  approved  by  the 
general  consensus  of  them  all.  The  formulation  of  the 
law  of  the  society  of  nations  seems  to  take  place  in  this 
manner.  A  drafting  process  occurs  through  the  writ- 
ings of  scholars,  and  through  the  briefs  and  notes  of 
diplomatic  officers,  and  the  rules  thus  formulated  are 
confirmed  and  authenticated  by  the  separate  nations 
by  acting  upon  them  in  cases  where  they  are  applicable. 
By  the  treaties  and  arbitrations  of  the  nations,  and  by 
international  conferences,  even  sometimes  by  war,  there 
arises  a  consensus  upon  a  certain  formulation  and  that 
formulation  becomes  a  law  of  the  society  of  nations. 

The  nations  in  this  process  may,  it  would  seem,  prop- 
erly be  conceived  of  as  the  judicial  agents  and  delegates 


Proposed  Codification  403 

of  the  society  of  nations  for  ascertaining  and  declaring 
the  customary  law  of  the  society,  or  as  an  informal 
legislature  of  the  society.  All  or  the  greater  part  of 
the  law  of  the  society  of  nations  is  undoubtedly  cus- 
tomary, and  treaties,  arbitral  and  judicial  decisions, 
international  conferences,  and  all  forms  of  diplomatic 
settlement  are  parts  of  the  formulating  and  authenti- 
cating process  by  which  the  laws  of  the  society  of 
nations  are  evolved,  and  given  the  sanction  of  the 
society. 

The  third  requirement,  that  there  should  be  a  definite 
body  of  persons  within  the  society  to  enforce  the  law, 
is,  it  seems,  complied  with  also  by  the  fact  that  the 
nations  are  the  component  units  of  the  society  of  nations. 
By  their  armed  forces,  they  enforce  the  law  of  the  so- 
ciety of  nations  as  the  authorized  agents  and  delegates 
of  the  whole  society  for  this  purpose. 

It  seems,  therefore,  that  we  may  conclude  that  that 
which  we  call  international  law  is  really  the  law  of  the 
society  of  nations,  and  that  it  is  true  law,  in  the  sense 
of  jtuisprudence. 

If  this  be  granted,  it  follows  that,  as  the  society  of 
nations  is  of  a  composite  and  federalistic  character, 
the  law  of  the  society  of  nations  must  be  federalistic 
in  character,  that  is  to  say,  that  it  must  relate  to  those 
matters  which  are  external  to  each  nation  and  of  com- 
mon interest  to  all  the  nations,  or  which  are  beyond  the 
competency  of  the  single  nations. 

If  this  be  so,  the  present  classification  of  international 
law  into  divisions  and  headings  wiU  be  much  altered. 
The  present  classification  dates  from  the  period  when 
international  law  was  conceived  of  in  terms  which 
really  made  it  nothing  but  the  usages  of  isolated  nations, 
usages  which  every  nation  was  free  to  follow  or  not  ac- 
cording to  its  own  mere  will  and  without  giving  any 


404  The  American  Philosophy  of  Government 

reason  or  explanation.  In  those  days,  the  primary 
conception  of  international  law  was  of  each  nation  as 
a  political  unit  isolated  from  all  the  rest,  instead  of  as  a 
component  unit  of  a  society  of  nations.  Hence  all 
classification  began  with  the  idea  of  each  nation  as  in- 
dependent of  and  equal  with  every  other,  those  com- 
munities which  were  under  the  control  of  a  nation 
though  not  partaking  of  its  political  life  being  regarded 
as  non-existent  for  international  purposes  or  as  merged 
in  the  international  personality  of  the  "sovereign" 
nation.  From  such  a  conception  it  inevitably  followed 
that  international  ''law"  dealt  with  the  contracts  or 
clashings  of  political  units  which,  desiring  to  live  as 
hermits,  found  themselves  forced  into  contact  or  con- 
flict with  other  units  of  equally  unsocial  aspirations. 
In  text-books  of  international  "law,"  after  the  in- 
dependence and  equality  of  nations  had  been  sufficiently 
elaborated  ,the  authors  proceeded  to  consider  the  ques- 
tions of  unsocial  contact  and  the  means  of  settling  the 
questions  growing  out  of  such  contact  by  diplomatic 
adjustment,  by  treaty  or  by  arbitration.  Lastly,  the 
subject  of  war  was  considered,  as  the  means  of  working 
off  the  humors  of  mutual  unsociability  or  preventing 
that  unsociability  which  took  the  form  of  forcible  ag- 
gression. 

From  the  study  of  the  evolution  of  political  societies 
which  has  been  made  by  various  authors  during  the  past 
half  century,  it  is  evident  that  the  society  of  nations 
has  gone  through  the  same  process  as  has  often  taken 
place  with  respect  to  families  and  clans,  until  it  has 
finally  reached  a  political  unity.  The  process  seems 
in  general  to  be  this :  The  patriarchal  or  clan  commu- 
nity tends  to  isolate  itself.  A  number  of  such  com- 
munities, though  living  near  to  one  another,  at  first 
have  no  common  law  and  no  law  for  their  common 


Proposed  Codification  405 

purposes.  They  fight  when  they  come  in  contact,  or 
settle  their  disputes  by  some  rude  form  of  arbitration. 
As  these  communities  increase  in  size  and  number,  the 
contacts  become  more  frequent,  and,  to  avoid  inces- 
sant fighting,  they  settle  more  and  more  disputes  by 
agreement  or  arbitration.  A  settlement  made  in  one 
case  tends  to  be  followed  in  another  similar  case,  and 
usage  begins.  Then  this  usage  becomes  so  frequent 
that  it  is  followed  generally  and  as  a  matter  of  course. 
The  usage  thus  becomes  a  custom.  Finally  the  families 
or  clans  become  so  intimately  associated  with  one  an- 
other that  they  begin  to  recognize  themselves  as  forming 
one  united  society  and  to  think  of  the  customs  which 
have  been  established  as  laws  of  the  society,  that  is, 
as  laws  emanating  from  the  people  of  the  society  as  an 
organized  unity.  It  soon  becomes  important  to  have 
the  customs  formulated  and  written  down,  and  persons 
more  or  less  authorized  by  public  sentiment  begin  to 
formulate  them.  Then  a  tribunal  is  instituted  to 
ascertain  the  customary  law  and  to  formulate  it  and 
apply  it  to  particular  cases.  Then,  as  it  is  not  fair  that 
some  should  obey  the  law  and  others  not,  the  society 
institutes  a  law-enforcing  body  and  arms  this  body  so 
that  it  may  compel  all  to  comform  to  the  customary 
law.  Soon  the  customary  law  is  found  inadequate  to 
cover  all  cases  or  to  be  violative  of  ethical  principles, 
and  the  society  institutes  tribunals  with  equity  powers, 
that  is,  with  power  to  apply  ethical  standards  to  cus- 
toms and  to  nullify  those  which  are  unreasonable,  and 
to  infer  a  custom,  where  there  is  no  actual  custom,  by 
considering  customs  established  in  analogous  cases  and 
applying  the  principles  of  right  and  wrong  as  deter- 
mined by  the  reason  and  conscience  of  religious  and  edu- 
cated men.  Then  the  society  establishes  a  law-making 
and  law-changing  body,  which  can  disregard  and  nullify, 


406  The  American  Philosophy  of  Government 

if  it  sees  fit,  the  customary  law,  and  which  can,  if  it  sees 
fit,  disregard  ethical  standards.  Finally,  even  this 
body  is  subjected  to  ethical  standards  formulated  as  a 
part  of  the  customary  and  universal  law  and  applied 
by  the  courts  or  other  suitable  tribunals. 

There  can  be  no  doubt  that  the  nations  of  the  world 
have  progressed  to  the  point  where  they  recognize 
themselves  as  living  under  customary  rules,  enforced 
by  the  censure  of  public  opinion.  There  is  good  rea- 
son to  believe  that  they  have  progressed  beyond  this 
stage,  and  that,  while  preserving  the  idea  of  independ- 
ence and  equality,  they  tend  more  and  more  to  recog- 
nize themselves  as  member-nations  of  the  society  of 
nations.  The  movement  for  an  international  court  of 
arbitral  justice  is  a  recognition  of  the  need  of  an  au- 
thoritative body  for  formulating  the  customary  law  of 
the  society  of  nations,  subject  to  confirmation,  authen- 
tication and  enforcement  by  the  nations.  Whether 
the  society  of  nations  will  find  it  necessary  to  establish 
a  law-making  body,  or  even  any  law-formulating  body, 
other  than  the  Hague  Conferences,  and  whether  it  will 
ever  establish  a  law-enforcing  body,  may  well  be 
doubted.  It  may  well  be  that  for  such  a  society  a 
customary  law  may  prove  the  strongest,  because  the 
most  elastic  bond  of  union,  and  that  the  ultimate  cen- 
tral body  will  be  a  supreme  court  whose  action  in  formu- 
lating the  customary  law  will  not  be  final,  but  will  be 
subject  to  confirmation,  authentication  and  enforce- 
ment by  the  nations. 

If  international  law  be  thus  regarded  as  the  law  of 
the  society  of  nations,  dealing  with  matters  external  to 
each  state  and  common  to  all  or  beyond  the  competency 
of  the  units  singly,  and  hence  as  federal  in  its  nature,  it 
becomes  necessary  to  distinguish  this  kind  of  law  from 
national  law  on  the  one  hand  and  from  what  may  per- 


Proposed  Codification  407 

haps  be  called  "the  supreme  universal  law"  on  the 
other.  Every  one  understands  what  national  law  is, 
and  every  American,  accustomed  to  the  distinction 
between  State  law  and  Federal  law,  perceives  the  dis- 
tinction between  national  law  and  the  federal  law  of  the 
society  of  nations.  But  the  conception  of  **  supreme 
universal  law,"  though  distinctly  American  and  indeed 
the  basic  idea  of  all  American  political  and  legal  in- 
stitutions, is  not  yet  familiar  even  to  American  students. 
To  illustrate:  By  the  Fifth  and  Fourteenth  Amend- 
ments to  the  Constitution  of  the  United  States,  every 
court  within  American  jurisdiction,  even  the  court  of  a 
justice  of  the  peace,  is  recognized  as  having  authority 
to  disregard  any  governmental  action  whatsoever  which 
deprives  the  individual  of  his  life,  liberty  or  property 
without  due  process  of  law.  If  the  court  does  dis- 
regard governmental  action  on  this  ground,  the  case 
may  go  on  appeal  to  the  Supreme  Court  of  the  United 
States;  and  if  that  court  is  of  opinion  that  the  govern- 
mental action  in  question  deprives  the  individual  of  his 
life,  liberty  or  property  without  due  process  of  law,  the 
governmental  action  in  question,  even  though  it  be  the 
action  of  Congress,  is  nullified.  This  is  American  law, 
formulated  in  amendments  to  the  Constitution  of  the 
United  States ;  but  we  do  not  hold  it  as  law  merely  be- 
cause it  is  a  part  of  the  Constitution.  It  can  be 
proved  historically  that  the  Constitution  in  this  respect 
is  regarded  by  us  as  declaratory  of  the  supreme  uni- 
versal law.  These  rights  "life,  liberty,  and  property" 
which  the  Constitution  secures  against  infringement 
by  governmental  action,  are  the  fundamental  rights  of 
self -protection  and  self-preservation,  corresponding  to 
those  attributes  of  life,  motion,  and  prehension  by 
which  all  men  are  equally  endowed  by  God,  and  the 
use  of  which  is  equally  needful  for  every  human  being 


408  The  American  Philosophy  of  Government 

for  his  self -pro  taction  and  self-preservation.  The  un- 
derlying principle  of  Magna  Charta  was,  that  society 
exists  and  governments  are  instituted  primarily  to  se- 
cure these  universal  and  fundamental  rights  and  that 
hence  the  powers  of  all  governments  are  limited  by 
these  fundamental  rights  of  the  individual.  In  the  time 
of  Coke,  these  fundamental  principles  of  law  were 
formulated  in  the  words  of  our  Constitution,  and  Eng- 
lish judges  asserted  that  the  English  courts  had  juris- 
diction, under  this  law,  as  a  supreme  universal  law,  to 
disregard  and  nullify  all  governmental  action  in  viola- 
tion of  the  fundamental  rights  of  the  individual.  But 
English  public  opinion,  in  view  of  the  military  and  eco- 
nomic exigencies  of  England,  failed  to  sustain  this 
view,  and  the  action  of  the  English  Parliament  was 
recognized  as  supreme  in  England,  through  the  fiction 
that  it  was  a  high  court.  In  the  American  Revolution, 
America  relighted  the  torch  of  progress  which  had  been 
extinguished  in  Great  Britain.  The  Continental  Con- 
gress, in  the  Declaration  of  Independence,  answered 
Great  Britain's  claim  of  legally-unlimited  power  over 
the  Colonies  by  asserting  that  there  are  fundamental 
rights  of  the  individual  under  the  supreme  universal 
law,  that  society  exists  and  governments  are  instituted 
primarily  to  secure  these  rights,  and  that  by  this  law 
the  powers  of  Great  Britain  and  of  every  nation  and 
government  were  and  are  legally  limited.  The  Civil 
War  was  fought  by  the  North  to  uphold  this  supreme 
universal  law,  and  after  the  war  the  principle  that 
throughout  American  jurisdiction  no  person  should,  by 
any  governmental  action,  be  deprived  of  his  life,  liberty, 
or  property  without  due  process  of  law,  was  formulated 
in  the  Constitution  and  was  thus  made  a  part  of  the 
supreme  law  of  the  land  which  all  courts  are  bound 
to  enforce. 


Proposed  Codification  409 

If,  therefore,  the  society  of  nations  is  to  be  consistent 
with  the  American  political  ideas,  it  must  recognize 
itself  as  existing  under  this  supreme  law,  as  distin- 
guished both  from  international  law  and  national  law. 
If  courts  are  established  by  the  society  of  nations  to 
ascertain  and  apply  the  law  of  the  society,  or  if  one  such 
court  is  established  with  supreme  judicial  powers,  it 
must  be  understood  that  over  and  above  the  law  of  the 
society  of  nations,  which  is  supreme  over  national  law, 
there  exists  a  supreme  universal  law  by  the  terms  of 
which  all  courts  are  entitled  to  disregard,  and  in  effect 
nullify,  all  governmental  action  involved  in  suits  duly 
pending  before  them,  even  national  laws  or  acts,  or  the 
laws  or  acts  of  a  group  of  nations,  or  the  laws  or  acts 
of  the  society  of  nations,  which  violate  the  fundamental 
rights  of  the  individual.  Indeed,  as  a  prerequisite  to 
the  establishment  of  an  international  supreme  court 
or  the  codification  of  international  law,  it  would  seem 
most  desirable  that  there  should  be  formulated  a  "con- 
stitutional bill  of  rights"  (as  Americans  say)  of  the 
society  of  nations,  which  would  safeguard  the  inter- 
national supreme  court  in  the  performance  of  its  duty 
to  disregard  and  nullify  any  governmental  action  which 
should  violate  the  fundamental  rights  of  the  individual. 

The  following  tentative  "Suggestions  concerning  a 
system  of  division  and  classification  of  the  principles  of 
International  Law  regarded  as  the  Federal  Customary 
Law  of  the  Society  of  Nations,"  will  illustrate  the  sys- 
tem of  classifying  the  principles  of  international  law, 
which  it  will  be  necessary  to  adopt  if  the  views  above 
expressed  should  be  accepted : 

Suggestions  concerning  a  system  of  division  and  classification 
of  the  principles  of  International  Law  regarded  as  the 
Federal  Customary  Law  of  the  Society  of  Nations. 


410  The  American  Philosophy  of  Government 

PART  I.     ORGANIC  PROVISIONS 

Chapter  I. 
The  names  and  boundaries  of  the  component    Nations 
forming  the  Society  of  Nations. 

Chapter  II. 
Character  of  the  component  nations. 

(a)  Independence. 

(b)  Equality. 

Chapter  III. 

Admission  of  new  members  into  the  Society  of  Nations. 

(a)  Declaration  of  Independence,  by  non-national  com- 
munities, and  recognition  by  the  nations. 

(b)  Division  of  nations  by  agreement  and  acquiescence 
by  the  other  nations. 

(c)  Junction  of  nations  by  agreement  and  acquiescence 
by  the  other  nations. 

Chapter  IV. 
States  having  a  qualified  membership  in  the  Society  of 
Nations. 

(a)  Protected  states. 

(b)  Neutralized  states. 

(c)  Supervised  states. 

Chapter  V. 

States  having  membership  in  the  Society  of  Nations 
through  a  delegate  Federal  Government  or  a  delegate 
Nation. 

(a)  Member  states  of  federal  states. 

(b)  Self-governing  colonies  of  nations. 

(c)  Partially  self-governing  colonies  of  nations. 

(d)  Non-self-governing  colonies  of  nations. 

(e)  Communities  on  reservations  and  under  tutelage. 

(f)  Communities  within  the  sphere  of  influence  of  a 
nation. 


Proposed  Codification  411 

Chapter  VI. 

Participation  in  the  Franchise  and  Governmental  Power 
of  the  Society  of  Nations. 

(a)  Civilized  nations  as  participants  in  the  political  life 
of  the  society  of  nations. 

(b)  Partly  civilized  and  barbarous  nations  as  partici- 
pants in  the  political  life  of  the  society  of  nations. 

Chapter  VII. 

Expansion  or  Contraction  of  Nations  with  the  acquies- 
cence of  the  Society  of  Nations. 

(a)  By  cession  or  annexation  of  territory  and  population, 
without  incorporation. 

(b)  By  cession  or  annexation  of  territory  and  popula- 
tion, with  incorporation. 

Chapter  VIII. 

Relations  between  the  Nations  and  the  Society  of  Nations. 

(a)  Reservation  to  the  nations  of  all  powers  which  are 
not  necessary  to  be  exercised  by  the  society  of  na- 
tions for  the  general  welfare. 

(b)  The  society  of  nations  the  disposer  and  regulator  of 
those  things,  activities  and  relationships  which  are 
beyond  the  competency  of  any  particular  nation 
and  in  which  all  have  an  interest. 

Chapter  IX. 

The  Law-formulating  and  Law-authenticating  Agents  of 
the  Society  of  Nations.  (Acting  for  the  Society  of  Nations 
by  implied  delegation.) 

(a)  Diplomatic  agents  of  nations. 

(b)  Treaty-making  officials  and  bodies. 

(c)  Foreign  departments  of  nations. 

(d)  International  arbitral  tribunals  having  diplomatic 
powers. 

(e)  Conferential  bodies  of  delegates  of  nations. 


412  The  American  Philosophy  of  Government 

(f)  National  courts  sitting  as  international  courts  (ap- 
plying international  law) . 

(g)  International  courts. 

(h)     National  executives  (by  message  or  proclamation), 
(i)      National  legislatures  (by  declaratory  act). 

Chapter  X. 

The  Law-enforcing  Agents  of  the  Society    of  Nations. 
(Acting  for  the  Society  of  Nations  by  implied  delegation.) 

(a)  National  executive  officials  and  bodies  acting  as  dele- 
gated executives  of  the  society  of  nations. 

(b)  National  armies  acting  as  armies  of  the  society  of 
nations. 

(c)  National  navies  acting  as  navies  of  the  society  of 
nations. 

Chapter  XI. 

The  nature  of  the  Law  of  the  Society  of  Nations. 

(a)  The  law  of  the  society  of  nations  as  customary  law. 

(b)  The  law  of  the  society  of  nations  as  statutory  law. 

(c)  The  supremacy  of  the  statutory  over  the  custom- 
ary law. 

Chapter  XII. 

Supremacy  of  the  Law  of  the  Society  of  Nations  over 
National  Law. 

(a)  The  law  of  the  society  of  nations,  the  supreme  law 
of  the  land  throughout  the  society  of  nations,  and 
hence  supreme,  for  the  common  purposes,  over  na- 
tional law. 

Chapter  XIII. 

Supremacy  of  the  Universal  Law. 

(a)  The  principles  of  universal  law  securing  the  rights 
of  the  individual  to  religious  freedom,  and  to  life, 
liberty,  and  property  as  against  all  governmental  ac- 


Proposed  Codification  413 

tion,  supreme  over  the  law  of  the  society  of  nations, 
national  law,  and  all  other  law. 

Chapter  XIV. 

International  Faith  and  Credit. 

(a)  Between  civilized  nations. 

(b)  Between  uncivilized  nations. 

PART  II.     REGULATIVE  PROVISIONS. 

RIGHTS. 

Chapter  I. 

Rights  of  individuals  against  governments  under  the  su- 
preme universal  law  (which  forms  part  of  the  law  of  the 
Society  of  Nations  as  of  all  other  law) . 

(a)  That  neither  the  society  of  nations  nor  any  nation 
shall  prohibit  the  worship  of  God,  or  unduly  regulate 
reHgious  practices  not  violating  private  rights  or  the 
public  peace  and  order. 

(b)  That  neither  the  society  of  nations  nor  any  nation 
shall  deprive  any  person  of  his  life,  liberty,  or  prop- 
erty without  due  process  of  law,  or  impair  the  ob- 
ligation of  contracts. 

Chapter  II. 

Rights  of  the  Society  of  Nations  against  the  Nations. 

(a)  The  right  of  the  society  of  nations  to  settle  disputes 
between  nations. 

1 .  Arising  under  treaties. 

2.  Arising  out  of  national  tortious  acts. 

3.  Arising  out  of  conflicting  boundary  lines. 

(b)  The  right  of  the  society  of  nations  to  regulate  the 
common  property  of  all. 

1 .  Navigation  of  the  high  seas  and  the  upper  air. 

2.  Pelagic  fishing  and  hunting. 

3.  Piracy  on  the  high  seas  or  in  the  upper  air. 


414  The  American  Philosophy  of  Government 

(c)  The  right  of  the  society  of  nations  to  regulate  in- 
ternationalized persons,  property,  land,  or  water. 

1 .  Regulation  of  the  Hague  Tribunal  and  Red  Cross 
officials  and  employees. 

2.  Regulation  of  Red  Cross  ships  and  supplies. 

3.  Regulation  of  the  International  Court  and  Tri- 
bunal property. 

4.  Regulation  of  internationalized  rivers,  channels, 
or  canals. 

(d)  The  right  of  the  society  of  nations  to  intervene  in 
the  inner  life  of  nations  or  countries  to  end  anarchy 
and  estabHsh  just  government. 

1 .  Joint  intervention  by  several  nations  in  behalf  of 
the  society  of  nations. 

2.  Intervention  by  the  nearest  or  most  interested 
nation  in  behalf  of  the  society  of  nations. 

Chapter  III. 

Rights  of   Nations    against   Nations,   each   in  its   own 
right. 

(a)  The  right  to  national  Hfe  and  liberty. 

1 .  Intercourse  between  citizens  of  different  nations. 

2.  Trade  between  citizens   of  different  nations. 

(b)  The  right  to  national  property. 

1.  National  territory. 

2.  Territory  gained  by  accretion. 

3.  Territory  gained  by  peaceable  occupancy  and 
prescription. 

(c)  The  right  to  the  performance  of  contracts. 
I .  Binding  force  of  treaties. 

Chapter  IV. 

Rights  of  Nations  against  States  which  are  not  full  mem- 
bers of  the  Society  of  Nations,  and  vice  versa. 

(a)  Protecting  nations  and  a  protected  state. 

(b)  Concerts  of  states  and  neutralized  states. 


Proposed  Codification  415 

Chapter  V. 

Rights  of  Nations  against  external  communities  not  mem- 
bers of  the  Society  of  Nations,  and  vice  versa. 

(a)  Nations  and  their  colonies. 

(b)  Nations  and  native  communities  on  reservations. 

(c)  Nations  and  aboriginal  communities  within  a  sphere 
of  influence. 

Chapter  VI. 

Rights  of  Nations   as  representatives  of  their  citizens 
against  other  Nations  in  their  own  right,  and  vice  versa. 

(a)  AHenage  as  determined  by  citizenship  of  birth  or  by 
citizenship  of  naturalization. 

(b)  Breach  by  nations  of  their  contracts  with  aliens. 

(c)  Tortious  acts  by  nations  against  aliens. 

(d)  Breach  by  aliens  of  their  contracts  with  nations. 

(e)  Crimes  committed  by  ahens. 
(^     Admission  of  ahens. 

(g)  Expulsion  of  ahens. 

(h)  Civil  rights  and  duties  of  resident  aliens. 

(i)  PoHtical  rights  and  duties  of  resident  aliens. 

(j)  Extradition  of  aliens. 

(k)  Extradition  of  citizens. 

Chapter  VII. 

Rights  of   Nations  as  representatives  of  their  citizens 
against  other  Nations  as  representatives  of  their  citizens. 

(a)  Contracts  between  citizens  of  different  nations. 

(b)  Tortious  acts  by  citizens  of  one  nation  against  citi- 
zens of  another  nation. 

remedies. 

Chapter  I. 

Remedies  of  Nations  against  other  Nations,  each  acting 
in  its  own  right. 

(a)     Arbitration  by  a  specially  constituted  tribunal. 


41 6  The  American  Philosophy  of  Government 

(b)  Arbitration  before  the  Hague  Tribunal. 

(c)  Decision  by  an  international  supreme  court. 

Chapter  II. 

Remedies  of  Nations  as  representatives  of  their  citizens 
against  Nations  in  their  own  right. 

(a)  Decision  by  tribunals  of  the  defendant  nation. 

(b)  Arbitration  by  a  specially  constituted  tribunal. 

(c)  Arbitration  before  the  Hague  Tribunal. 

(d)  Decision  by  international  courts. 

Chapter  III. 

Remedies  of  Nations  as  representatives  of  their  citizens 
against  other  Nations  as  representatives  of  their  citizens. 

(a)  Decision  by  tribunals  of  the  defendant  nation. 

(b)  Arbitration  by  a  specially  constituted  tribunal. 

(c)  Arbitration  before  the  Hague  Tribunal. 

(d)  Decision  by  international  courts. 

Chapter  IV. 

Procedure  in  International  Cases. 

(a)  Procedure  in  filing  and  prosecuting  claims  before 
departments  of  national  governments. 

(b)  Procedure  in  specially  constituted  tribunals. 

(c)  Procedure  in  the  Hague  Tribunal. 

(d)  Procedure  in  international  courts. 

Chapter  V. 

Execution  of  International  Laws  and  Judgments, 
(a)     By  separate  or  joint  national  armies  or  navies  acting 
as  a  delegated  constabulary  of  the  society  of  nations. 

Chapter  VI . 

Methods  of  using  Armed  Forces,  when  resistance  is  made 
to  execution  of  International  Laws  and  Judgments. 
(The  laws  of  war  and  of  neutrality.) 


Proposed  Codification  4.17 

If  the  society  of  the  nations  shall  thus  recognize  itself 
as  a  federal  political  society  under  a  customary  federal 
law,  which  rather  requires  psychological  than  political 
action,  since  the  society  of  nations  exists  when  the  mass 
of  mankind  recognize  its  existence,  we  may  conclude, 
as  it  would  seem,  that  the  proposed  international  court 
of  arbitral  justice  is  necessary  and  desirable,  and  that 
codification  of  international  law,  that  is,  authoritative 
codification,  is  not  necessary  and  probably  not  desirable. 

The  international  court  of  arbitral  justice  would  be 
the  court  of  last  resort  in  all  cases  arising  under  in- 
ternational law  involving  rights  of  the  citizens  of  the 
nations,  and  might  be  given  original  and  even  exclusive 
jurisdiction  of  cases  arising  between  nations  where  each 
sues  in  its  own  right  and  not  as  representative  of  its  citi- 
zens. In  some  cases  it  might  be  proper  that  the  de- 
fendant nation  should  reserve  the  right  to  decline  to 
appear.  Such  right  to  decline  to  appear  in  the  Su- 
preme Court  of  the  United  States  is  reserved  to  the 
States  of  the  American  Union  when  they  are  sued  by 
citizens  of  other  States. 

Codification  of  international  law,  always  understand- 
ing by  codification  authoritative  codification,  seems 
necessarily  to  imply  a  temporary  or  a  permanent  legis- 
lature of  the  society  of  nations.  A  temporary  legis- 
lature which  should  convert  the  customary  law  of  the 
society  of  nations  into  statutory  law  and  then  disap- 
pear would  leave  behind  an  unchangeable  law,  which  is 
always  an  obstacle  to  reasonable  and  rightful  evolution. 
A  good  rule  to-day  may,  in  the  course  of  evolution, 
become  later  on  a  bad  rule.  A  permanent  legislature 
of  the  society  of  nations  would  necessarily  be  on  the 
representative  basis.  The  representative  system  has 
never  yet  been  sucessfuUy  applied  except  in  a  homo- 
geneous civilized   community  on  a  territorial  unity. 

27 


41 8  The  American  Philosophy  of  Government 

Communities  which  are  separated  from  each  other,  or 
which,  though  contiguous,  are  psychologically  diverse, 
have  never  yet  been  successfully  held  together  by  a 
representative  legislature,  and  it  seems  probable  they 
never  will.  For  the  separated  and  diverse  nations,  a 
common  supreme  customary  law,  federal  in  its  nature, 
formulated  from  time  to  time  on  ethical  principles  by 
all  the  existing  agencies  of  diplomative  settlement  and 
international  conference  and  by  the  proposed  supreme 
international  court,  confirmed  by  the  consensus  of  the 
nations,  and  enforced  by  the  nations,  seems  likely  to  be 
the  most  efficient  bond  of  union. 


THE  LAW  OF  NATIONS 


419 


THE  LAW  OF  NATIONS 

Printed,  with  permission,  from  the  original  manuscript  of  an  article 
which  appeared  in  a  French  translation  in  the  May- June,  191 2,  number 
of  the  Revue  Generate  de  Droit  Internationat  Pubtic,  pp.  309-318.  Ameri- 
can Journat  of  International  Law,  October,  19 12. 

AFTER  the  Reformation,  when  Europe  divided 
itself  into  a  number  of  separate  states,  each 
claiming  to  be  an  independent  nation,  the 
necessary  contacts  between  them  led  to  frequent  wars. 
The  question  arose  how  to  bring  about  a  concert  of 
action  between  them,  which  should  result  in  peace  and 
order.  All  that  could  be  done  by  agreement  was  done. 
But  it  was  clear  that  peace  and  order  were  constantly 
imperilled  so  long  as  the  settlement  of  the  questions 
constantly  arising  out  of  these  necessary  contacts  was 
dependent  upon  treaties,  because  at  any  time  on  slight 
pretext  these  might  be  rescinded.  It  was  perceived 
that  the  only  assurance  of  peace  and  order  among 
nations,  as  among  individuals,  lay  in  the  establishment 
of  a  law  governing  the  actions  and  relations  of  the 
nations.  Publicists  therefore  set  themselves  to  the  task 
of  formulating  and  establishing  such  a  law. 

In  laying  the  foundations,  they  naturally  looked  to 
the  great  political  concepts  of  their  past  and  present. 
First,  there  was  the  original  Roman  Empire,  which  had 
expressed  itself  through  the  civil  law.  The  political 
principle  of  that  empire  was  that,  though  all  power  was 
theoretically  vested  in  all  the  people  of  the  empire 
regarded  as  a  single  political  society,  the  whole  society 
had   delegated  all  its  power   to   the   Emperor,    who, 

421 


422  The  American  Philosophy  of  Government 

through  organs  selected  theoretically  by  himself,  im- 
posed law,  as  a  supreme  political  personality  represent- 
ing the  whole  empire,  upon  all  the  persons  and  bodies 
politic  and  corporate  within  the  empire.  Second,  there 
was  the  Christian  society  of  the  early  Church  which 
based  itself  upon  the  teaching  of  Christ  and  the  Apos- 
tles, and  which  was  in  part  theocratic  and  in  part 
democratic  and  republican.  This  society  included  all 
professing  Christians  regardless  of  the  political  juris- 
diction in  which  each  found  himself;  it  exercised  no 
political  control  over  its  members,  but  only  a  spiritual 
oversight  of  them.  Third,  there  was  the  Holy  Roman 
Empire,  which  expressed  itself  in  part  through  political 
compacts  between  the  component  states,  and  in  part 
through  the  canon  law.  Its  principle  was  that  the 
various  great  communities  of  Continental  Europe,  as 
independent  states,  had  delegated  power  for  the  com- 
mon purposes  to  the  Emperor  and  Diet,  subject  to  a 
moral  or  quasi-legal  control  by  the  Papacy  for  the  pro- 
tection of  the  individual  as  a  member  of  the  Church; 
the  Emperor  and  Diet,  and  the  Papacy,  thus  consti- 
tuting a  dual  federal  head,  for  the  common  political 
purposes  and  for  establishing  imiformity  in  religious 
practice,  of  a  federation  composed  of  the  states  of  Con- 
tinental Europe — the  British  Islands  remaining  outside 
the  federation  and  the  states  of  Northern  Europe 
participating  in  it  in  a  half-hearted  manner.  To  these 
conceptions  of  an  organized  society  regardless  of  or 
inclusive  of  states  and  superior  to  states  and  persons 
for  all  or  some  purposes,  was  opposed  the  conception, 
which  became  prevalent  after  the  Treaty  of  Westphalia, 
of  the  civilized  world  as  composed  of  a  body  of  states 
wholly  independent  and  only  morally  bound  by  such 
agreements  as  they  might  choose  to  make,  for  such  time 
as  they  might  choose  to  keep  them;  or  at  least  so  far 


The  Law  of  Nations  423 

independent  as  to  be  subject  in  their  external  relations 
to  no  law  except  that  of  natural  reason  and  justice, 
each  one  interpreting  this  natural  reason  and  justice 
according  to  its  own  ideas. 

Out  of  these  various  conceptions,  the  publicists  of 
the  Reformation  evolved  what  they  called  the  law  of 
nations,  based  in  part  upon  the  jus  gentium  of  the 
original  Roman  Empire,  in  part  upon  the  federal  law 
of  the  Holy  Roman  Empire,  and  in  part  upon  history 
and  precedent;  and  what  they  called  ''the  law  of 
nature,"  based  in  part  upon  the  lex  naturce  of  the 
lawyers  of  the  original  Roman  Empire, — which  was 
based  on  reason  and  conscience, — and  in  part  upon 
the  moral  and  political  philosophy  of  Christ  and  the 
Apostles. 

The  weakness  of  the  argument  of  the  publicists  of  the 
Reformation  lay  in  the  fact  that  they  were  unable  to 
point  out  any  inclusive  organized  society  or  any  other 
personality  as  the  law-giver  for  the  nations.  The 
Reformation  was  partly  political  and  partly  religious. 
As  a  political  movement,  it  had  for  its  object  the  de- 
thronement of  the  Emperor  and  the  Pope  as  the  dual 
government  of  a  political  society  which  included  most 
of  the  civilized  world.  Upon  their  dethronement,  this 
inclusive  society  disintegrated.  The  old  system  was  so 
unpopular  that  no  attempt  was  made  to  reorganize  the 
society  of  the  European  states  under  a  new  and  better 
form  of  government.  The  world  had  not  advanced  to  a 
point  where  this  was  possible.  The  only  conception  of  a 
society  inclusive  of  and  superior  to  the  nations  which 
remained  after  the  Reformation  was  that  which  Christ 
had  announced.  But  this  was  spiritual,  not  political; 
and  it  was  universal,  not  European.  Though  the  Chris- 
tian philosophy  thus  kept  alive  the  idea  of  an  all-in- 
clusive society  as  the  law-giver  of  the  nations,  it  afforded 


424  The  American  Philosophy  of  Government 

no  basis  for  a  practical  realization  of  such  a  society  as 
a  political  fact. 

Because  the  publicists  of  the  Reformation  were  thus 
unable  to  point  to  a  law-giving  personality  for  the 
nations,  they  failed  to  show  the  existence  of  a  law 
governing  the  nations.  They  and  their  successors, 
however,  succeeded  in  convincing  the  world  that  such 
a  law  ought  to  exist  and  that  it  was  practicable  to  for- 
mulate it.  Nations  began  in  fact  to  abide  by  and 
enforce  some  of  the  principles  formulated  by  the  pub- 
Heists,  but  each  nation  continued  to  insist  that  it  was 
its  own  law-giver.  There  were  thus  certain  points  of 
agreement  between  the  nations  which  had  some  out- 
ward semblance  to  laws  governing  the  nations.  In 
1780  Jeremy  Bentham  invented  the  expression  "in- 
ternational law,"  which  so  nearly  expressed  the  exist- 
ing fact  that  it  was  soon  seized  upon  by  politicians  and 
publicists  and  came  into  general,  though  not  universal, 
use.  (This  expression  was  used  in  his  essay  on  The 
Principles  of  Morals  and  Education.) 

As  we  are  now  able  to  see,  the  term  "international 
law"  is  self -contradictory  and  therefore  unscientific. 
That  which  is  international  cannot  be  law;  or,  what  is 
the  same  thing,  that  which  is  law  cannot  be  inter- 
national. Agreements,  relationships,  commerce  may 
exist  between  nations  and  thus  be  international;  but 
law  can  never  so  exist.  Law  always  and  inevitably 
comes  from  above.  Morality  may  come  from  above 
or  from  within.  Agreements  are  related  to  law  only 
as  one  of  the  means  of  establishing  law.  An  agreement 
permanently  to  observe  a  rule  in  a  specified  set  of 
circumstances  establishes  the  rule  as  a  law  between  the 
agreeing  parties ;  but  the  rule  is  the  law,  not  the  agree- 
ment; and  if  the  principle  agreed  upon  be  a  true  prin- 
ciple of  justice,  the  agreement  establishing  the  rule  is 


The  Law  of  Nations  425 

justly  irrevocable,  and  is  functus  officio  as  soon  as  made. 
The  only  adjective  which  can  appropriately  be  used  with 
"law"  to  express  the  idea  of  a  law  governing  the  na- 
tions is  therefore  * 'supranational'*  or  "supernational." 
In  an  article  on  ''The  Primary  Sources  of  International 
Obligations"  printed  in  the  Preceedings  of  the  Fifth 
Annual  Meeting  of  the  American  Society  of  International 
Law,  held  at  Washington,  D.  C,  April  2'j-2g,  191 1,  pp. 
280-289,  Professor  William  L.  Hull  suggested  a  distinc- 
tion between  "the  law  of  nations,  or  extranational  law; 
the  law  between  nations,  or  international  law;  and  the 
law  over  nations,  or  supranational  law. ' '    Extranational 
law  he  defined  as  "a  composite  photograph  [or]  an  amal- 
gamation of  national  interpretations  of  international 
law";  international  law  as  "a  collection  of  the  rules 
in  force  between  pairs  or  groups  of  nations";  and  su- 
pranational law  as  "a  body  of  law  so  universal  in  scope, 
so  expressive  of  the  genius  of  the  family  of  nations  as  a 
whole,  that  it  may  serve  as  a  basis  for  a  genuine  inter- 
national court  of  justice."     The  terms  "extranational* 
law"  and  "international  law,"  as  defined  by  Professor 
Hull,  seem  to  the  author  to  be  correct,  since  "law," 
in  the  sense  in  which  that  word  is  used  in  the  science 
of  jurisprudence,  always  comes  from  "above"  persons 
or  nations — not  merely  from  "outside"  of  them,  and 
not   at   all  from    "between"   them.     "Supranational 
law,"  as  thus  defined  by  him,  seems  to  the  author  to  be 
indefinite.      "Supranational  law"   (or  " supemational 
law,"),  in  the  sense  in  which  the  expression  is  used  by 
the  author,  is  "the  federal  law  of  the  society  of  nations" 
regarding  which,  see  an  article  by  the  author,  in  the 
same  volume  with  that  of  Professor  Hull,  pp.  320-337, 
entitled  "The  Proposed  Codification  of  International 
Law  and  the  Relation  of  Codification  to  the  Proposed 
Establishment  of  a  Supreme  International    Court  of 


426  The  American  Philosophy  of  Government 

Arbitral  Justice."  Professor  Hull  interprets  his  defi- 
nition of  ''supranational  law"  in  this  sense.  He  re- 
gards supranational  law  as  the  law  of  ' '  the  Family  of 
Nations,"  and  draws  an  analogy  between  this  law  and 
''the  law  which  was  brought  into  existence  [in  1789] 
for  that  new  entity  termed  'The  United  States  of 
America.'"  See  his  article,  p.  281.  Whether  the 
law  governing  nations  be  established  by  agreement 
or  by  force,  it  comes  from  above,  and  there  exists  a 
human  law-giver.  Who  or  what  is  this  human  law- 
giver as  respects  the  nations?  In  the  light  of  recent 
study  of  the  science  of  jurisprudence,  this  question  may, 
it  would  seem,  easily  be  answered. 

It  is  now  agreed  that  law,  in  the  sense  of  the  science 
of  jurisprudence,  emanates  from  a  political  society,  and 
is  imposed  by  that  society  upon  the  members.  Law,  in 
this  sense — which  is  the  sense  we  are  considering — is 
a  body  of  rules  imposed  by  a  society  upon  its  members. 
Until  quite  recently  scholars  have  fallen  into  the  error 
of  confusing  the  organs  of  the  society  with  the  society 
itself — the  agent  with  the  principal.  Because  the  par- 
liament, the  congress,  the  emperor,  the  king,  the  presi- 
dent, the  courts,  the  subordinate  officials,  the  shifting 
majority  of  electors  or  voters,  actually  do  the  work  of 
governing,  we  regard  them  as  law-givers ;  whereas  they 
are  merely  the  organs  of  the  society,  and  the  whole 
society,  of  which  they  are  organs  and  agents,  is  the  real 
law-giver. 

Thus  when  two  or  more  nations  agree  to  apply  a  cer- 
tain principle  in  a  specified  class  of  cases,  they  together 
constitute  for  this  purpose  a  single  society,  of  which  they 
act  as  organs,  and  the  principle  established  becomes  a 
law  of  the  society  and  is  enforced  by  the  society. 

All  law  governing  nations  therefore  is  imposed  upon 
the  separate  nations  by  a  society  of  peoples  and  nations 


The  Law  of  Nations  427 

which  may  include  all  or  a  part  of  them,  and  which  is 
above  and  superior  to  each  of  them. 

This  idea  of  a  political  society  composed  of  all  the 
peoples  and  nations,  which  is  a  law-giver  for  the  nations, 
is  but  an  enlargement  of  conceptions  which  are  common 
among  us.  Great  states  and  empires  exist  which  are 
composed  of  states,  and  in  which  the  whole  society  acts 
as  a  law-giver  for  the  component  units  to  the  extent 
necessary  in  the  common  interests.  The  United  States 
and  the  British  Empire  are  examples  of  such  societies. 
The  latter  includes  nations  of  every  variety  of  race, 
civiHzation  and  creed.  The  expression  "the  society  of 
nations,'*  as  a  term  signifying  the  political  society  com- 
posed of  all  the  peoples  and  nations,  or  of  all  the  civi- 
lized peoples  and  nations,  is  coming  into  common  use. 
Profossor  Westlake  asserts  that  what  is  usually  called 
international  law  is  the  law  of  the  society  of  nations. 
{International  Law,  by  John  Westlake,  Part  I,  Peace, 
ed.  1910,  p.  I.)  It  is,  we  venture  to  assert,  not  going 
beyond  the  fact  to  say  that  at  the  present  moment,  the 
nations  and  peoples  of  the  world  are,  by  agreements, 
by  commerce,  by  relationships,  indissolubly  and  fed- 
erally united,  so  that  they  together  constitute  a  body 
politic  and  corporate,  which  is  the  law-giving  personal- 
ity above  the  nations. 

But  this  will  no  doubt  be  at  first  denied,  and  it  will 
be  urged  that  the  society  of  nations  is  only  an  imaginary 
body  politic  and  corporate.  Before  it  can  become  a 
fact,  it  will  be  said,  it  must  be  created  as  an  institution 
among  men,  its  functions  must  be  defined  and  it  must 
be  provided  with  suitable  officials  and  organs  by  which 
to  express  itself. 

As  respects  the  first  objection,  it  may  be  answered 
that  a  corporation  need  not  be  created  by  express 
action  of  the  state  or  of  the  persons  or  political  units 


428  The  American  Philosophy  of  Government 

composing  it,  and  that  a  body  politic  or  corporate  may 
exist  by  being  recognized  as  a  corporation  by  a  given 
state  or  by  society  at  large.  In  the  same  manner, 
an  inclusive  political  society  having  states  and  their 
peoples  as  its  component  units  need  not  necessarily  arise 
by  the  process  of  creation  or  through  express  agreement 
of  the  component  units,  but  may  exist  through  their 
recognition  of  themselves  as  forming  such  an  inclusive 
society.  The  truth  seems  to  be  that  the  society  of 
nations  exists  by  the  recognition  of  the  nations  and  of 
the  people  of  the  nations — ^that  is  by  the  recognition 
of  society  at  large. 

As  respects  the  second  objection,  the  powers  of  the 
society  of  nations  regarded  as  a  political  corporation 
are  defined  by  the  circumstances  of  the  case  and  by  the 
needs  of  the  situation.  There  is  no  need  for  the  nations 
to  submit  themselves  to  any  law-giving  personality  as 
respects  their  strictly  internal  and  domestic  affairs. 
Experience  has  shown  that  civilization  is  advanced  by 
the  nations  exercising  all  functions  in  this  respect.  The 
only  need,  in  the  interests  of  civilization,  is,  that  there 
should  exist  a  law-giving  personality  as  respects  those 
matters  which  are  common  to  all  or  which  are  beyond 
the  competency  of  any  one.  The  powers  of  the  society 
of  nations  as  a  law-giver  for  the  nations  are  therefore 
limited  by  the  necessity  and  propriety  in  the  case,  to 
those  which  are  needful  in  order  that  those  matters 
which  are  common  to  all  may  be  disposed  and  regulated 
according  to  a  common  plan  for  the  benefit  of  all,  and 
in  order  that  those  matters  may  be  adjusted  which 
concern  more  than  one  and  less  than  all  the  nations, 
and  which  are  therefore  beyond  the  competency  of  any 
one  of  them  to  decide.  In  a  word,  the  society  of  nations 
is  by  the  nature  of  the  case  a  federal  body  politic  and 
corporate,  and  its  central  government,  if  one  can  be 


The  Law  of  Nations  429 

said  to  exist,  is  a  federal  government  as  respects  the 
nations,  and  exercises  the  usual  powers  of  such  a 
government. 

In  reply  to  the  third  objection,  that  there  are  no 
officials  or  organs  of  the  federal  government  of  the  soci- 
ety of  nations,  it  may  be  said  that  if  this  were  true,  it 
would  not  be  fatal.  A  corporation  may  exist  without 
officers,  and  a  body  politic  may  exist  without  a  govern- 
ment or  under  a  provisional  government.  When  there 
is  no  designated  governing  body,  the  powers  of  the  cor- 
poration or  nation  revert  to  the  whole  membership  of 
the  corporation  or  nation,  who  may  designate  their 
officials  and  divide  among  them  the  powers  of  the  cor- 
poration. The  designation  of  a  governing  body  is  thus 
wholly  a  matter  of  convenience.  If  it  be  more  conveni- 
ent under  any  given  circumstances  for  a  corporation  or 
a  bocjjr  politic  to  manage  its  affairs  otherwise  than 
through  a  governing  body  specially  designated,  or 
through  a  provisional  government  pending  the  estab- 
lishment of  a  permanent  government,  it  is  competent 
for  it  so  to  do. 

It  appears  to  be  the  case  that  it  is  more  convenient 
under  present  circumstances  that  the  federal  govern- 
ment of  the  society  of  nations  should  not  be  placed  in 
charge  of  a  specially  designated  and  authorized  governing 
body  and  that  the  federal  powers  should  be  exercised 
by  or  under  the  supervision  of  the  nations  themselves 
as  the  ultimate  federal  government,  in  such  manner 
that  the  rights  of  the  minority  may  be  respected.  As 
has  been  said,  when  certain  of  the  nations  through 
treaties  or  conventions,  agree  to  establish  a  rule  be- 
tween them  based  on  principles  of  justice,  they  are  act- 
ing as  the  organs  and  officials  of  the  society  of  nations 
and  as  its  federal  government  to  a  certain  extent,  and 
are  respecting  the  rights  of  the  minority  by  not  enforc- 


430  The  American  Philosophy  of  Government 

ing  the  rule  except  between  the  agreeing  nations.  A 
specially  designated  and  authorized  governing  body 
could  hardly  be  based  on  any  other  than  the  representa- 
tive principle,  and  whether  the  basis  of  representation 
were  wealth  or  population,  or  both,  the  majority  of 
the  representatives  would  necessarily  rule.  Experience 
has  proved  that  the  representative  principle  is  applic- 
able only  among  homogeneous  populations  of  high 
civilization  inhabiting  a  territory  all  parts  of  which  are 
contiguous.  Nations  and  peoples  which  though  homo- 
geneous are  of  low  civilization,  or  which  are  hetero- 
geneous in  race  or  creed,  or  which  are  of  varying 
degrees  of  civilization,  or  which  inhabit  regions  separate 
from  each  other,  must  affect  their  common  ends  and 
must  adjust  those  disputes  in  which  more  than  one 
and  less  than  all  are  concerned,  through  some  species 
of  government, — informal  or  even  formless  almost 
though  it  may  be, — whereby  the  local  circumstances 
of  each  may  receive  due  consideration  and  whereby 
the  danger  of  a  majority  which  is  in  fact  a  political 
coalition  seeking  control  and  aggrandizement  may  be 
averted.  The  society  of  nations,  regarded  as  a  political 
society,  is  composed  of  heterogeneous  and  separated 
nations  and  peoples,  and  its  government  must  therefore 
be  so  constituted  and  carried  on  that  all  danger  of 
majority  rule  may  be  avoided  and  opportunity  be 
given  for  each  nation  or  any  minority  of  the  nations  to 
take  such  measures  and  abide  by  such  rules  as  it  or 
they  may  deem  necessary  for  self -protection  and  self- 
preservation  and  for  the  common  welfare  of  all.  Such 
a  federal  government  of  the  society  of  nations  does, 
we  venture  to  assert,  exist. 

Before  attempting,  however,  to  describe  this  govern- 
ment, it  will  be  desirable  to  notice,  first,  that  the  society 
of  nations,  regarded  as  a  federal  body  politic,  is  of  what 


The  Law  of  Nations  431 

may  be  called  the  mixed  form.  The  study  of  the  science 
of  government  has  shown  that  there  are  two  general 
classes  of  federal  bodies  politic — one  in  which  the  com- 
ponent states  or  the  whole  people  designate  individuals 
who  collectively  constitute  the  federal  government,  and 
the  other  in  which  one  of  the  states  or  a  group  of  them 
constitute  the  federal  government  or  control  the  desig- 
nation of  the  individuals  who  constitute  such  govern- 
ment. The  society  of  nations  appears  to  partake  some- 
what of  the  nature  of  each  of  these  forms.  Such 
gatherings  as  the  Hague  Conferences  have  some  re- 
semblances to  a  federal  government  on  representative 
principles,  though  such  conferences  are  only  advisory; 
yet  as  matter  of  fact,  the  supernational  law  of  the 
world  is  made  principally  through  the  persuasive 
hegemony  of  the  group  of  nations  which  we  call  "the 
great  Powers." 

It  win  be  desirable,  also,  to  bear  in  mind  that,  as  the 
result  of  recent  study  of  jurisprudence,  it  has  been 
shown  that  all  government,  whether  the  form  of  the 
body  politic  be  unitary  or  federal,  involves  the  perform- 
ance of  two  and  only  two  fimctions — the  formulation 
of  laws  and  the  enforcement  of  them.  Law,  in  the  sense 
of  the  science  of  jurisprudence,  as  has  been  said,  ema- 
nates from  a  political  society,  and  is  imposed  by  the 
society  upon  its  members:  but  law  does  not  exist  until 
it  is  formulated  by  the  society  and  it  is  in  a  state  of 
suspended  animation  unless  it  is  enforced  in  the  cases 
to  which  it  is  applicable. 

Lastly,  it  will  be  necessary  to  remind  ourselves  that 
though  we  may  think  and  speak  of  nations  or  other 
corporations  as  forming  a  government  of  an  inclusive 
society,  just  as  we  may  think  and  speak  of  a  corpora- 
tion composed  of  corporations,  nations  and  corporations 
are,  after  all,  bodies  of  persons,  and  our  enquiry  resolves 


432  The  American  Philosophy  of  Government 

itself  in  the  last  analysis  into  a  search  for  the  persons 
who  formulate  and  enforce  the  law  of  the  nation  or 
corporation  which  we  are  considering. 

Who,  then,  are  the  persons  who,  in  behalf  of  the  soci- 
ety of  nations  and  as  its  federal  government,  formulate 
and  enforce  the  federal  law  of  the  society,  which  we  call 
international  law,  but  which  we  should,  it  would  seem, 
call  the  supernational  law?  Those  who  formulate  the 
law  are  clearly  the  publicists,  the  members  of  embassies 
and  legations,  the  members  of  the  foreign  departments, 
the  members  of  councils  and  senates  who  pass  upon  the 
ratification  of  treaties,  and  the  members  of  the  national 
legislatures  who,  in  the  last  resort,  pass  upon  great  con- 
ventions between  the  nations  and  determine  the  foreign 
policy  of  each  nation.  These  officials  act,  we  may 
believe,  as  a  general  rule,  not  merely  in  the  interests 
of  their  own  nations,  but  in  the  interests  of  the  peace 
and  order  of  the  world.  The  law-enforcing  officers  of 
the  society  of  nations  we  find  among  the  executives  of 
the  nations  acting  both  in  their  civil  and  in  their  mil- 
itary capacity.  Rarely  can  there  be  found  a  national 
executive  who  does  not,  when  attempting  to  wield  the 
power  of  his  nation  against  other  nations,  consider  the 
interests  of  the  rest  of  the  world  as  well  as  those  of  his 
own  nation,  or  at  least  attempt  to  do  so.  The  military 
and  naval  officers  of  to-day,  familiar  with  the  whole 
world,  seek  to  make  their  national  flags  emblems  of 
civilization,  and  to  use  the  engines  of  destruction  only 
that  obstacles  to  progress  and  illumination  may  be 
removed :  and  victorious  soldiers  are  often  sympathetic 
teachers  and  guides  of  the  vanquished.  When  civilized 
nations  seek  to  impose  their  judgments  upon  countries 
external  to  them,  they  more  and  more  tend  to  justify 
their  action,  in  the  eyes  of  the  nations;  attempting 
to  show,  by  reason  and  argument,  that  the  action  in 


The  Law  of  Nations  433 

question  is  necessitated  in  the  interests  of  the  common 
welfare  as  well  as  in  their  own  interests. 

But  it  may  be  said  that  all  this  is  fanciful, — that  the 
case  for  supernational  law  has  not  been  made  out — 
that  it  is  well  not  to  change  an  old  expression  like  "inter- 
national law"  which  has  served  a  good  purpose,  self- 
contradictory  though  this  term  may  be — that  the  com- 
promise which  was  good  enough  for  our  fathers  ought 
to  be  good  enough  for  us. 

•  But  all  compromises  regarding  matters  which  are  of 
constant  occurrence  are  in  the  nature  of  things  tem- 
porary. By  the  process  of  evolution  a  point  is  certain 
ultimately  to  be  reached  where  a  definite  decision  of 
the  question  has  to  be  made.  That  point  has,  it  would 
seem,  been  reached  as  respects  the  law  governing  the 
nations.  The  common  juridical  sentiment — to  use  the 
expression^of  Rivier — has  now  evolved  to  the  point 
where  it  is  no  longer  satisfied  with  a  law  purporting  to 
govern  the  nations  which  in  the  last  analysis  is  no  law 
at  all  but  merely  an  agreement  between  certain  of  them. 
The  meaning  of  law  is  now  clearly  understood,  and  it 
is  also  understood  that  there  is  no  reason  why  nations, 
like  other  persons  and  corporations,  should  not  be 
subject  to  law.  There  is  no  desire  that  the  nations 
should  yield  their  rights  of  self-preservation  or  self- 
protection.  As  respects  the  language  in  which  super- 
national  law  shall  be  formulated  and  as  respects  the 
manner  of  its  enforcement,  the  nations  are  regarded  by 
the  common  juridical  sentiment  as  the  safest  judges. 
But  there  is  a  growing  insistence  that  there  shall  be  a 
true  supernational  law,  to  the  extent  that  such  a  law  is 
possible  consistently  with  national  self-preservation 
and  self -protection.  Judicial,  not  political,  settlement 
of  international  disputes  is  earnestly  advocated  by  the 
leading  statesmen  of  the  world,  in  so  far  as  such  settle- 

a8 


434  The  American  Philosophy  of  Government 

merit  is  possible  without  destroying  the  nations.  The 
demand  for  a  supreme  court  of  the  society  of  nations 
to  supplement  the  present  international  arbitral  tri- 
bunal, leaving  to  the  arbitral  tribunal  the  function  of 
settling  questions  which  are  of  a  nature  to  be  settled 
by  political  compromise  rather  than  by  judicial  decision, 
becomes  more  and  more  pressing. 

It  seems,  therefore,  that  the  time  has  come  when 
supernational  law  must  supplant  that  which  is  called 
''international  law."  Out  of  regard  for  the  national 
rights  of  self-preservation  and  self -protection,  we  must 
proceed  cautiously  in  working  out  details,  and  objec- 
tions of  nations  to  submit  their  disputes  under  a  law 
admittedly  supernational  should  be  viewed  leniently; 
for  a  supernational  law  will  destroy  itself  if  it  destroys 
the  nations.  As  a  true  supernational  law  must  protect 
and  preserve  the  nations  as  well  as  regulate  them  in  the 
common  interests,  it  is  consistent  with  such  a  law  that 
the  nations  should  decline  to  submit  to  judicial  settle- 
ment any  questions,  which,  if  decided  adversely  to  them, 
would  result  in  their  destruction.  Indeed,  when  the 
supernational  law  is  finally  formulated,  it  must  of 
necessity,  as  it  will  in  fact  be  the  federal  law  of  the 
society  of  nations,  itself  exclude  from  judicial  considera- 
tion questions  which  involve  the  self -protection  or  self- 
preservation  of  any  nation.  But  even  when  such  ques- 
tions are  excluded,  the  scope  of  supernational  law  is 
wide. 

The  acceptance  of  "the  federation  of  the  world"  as 
an  existing  fact  does  not  necessarily  involve  a  belief 
in  the  ultimate  evolution  of  a  "parliament  of  man." 
Formulation  of  laws  by  parliaments  involves  the  rule 
of  the  majority.  Majority  rule  is  just  only  when  the 
members  of  the  minority  have  equal  opportunity  with 
the  members  of  the  majority  to  convert  a  minority  into 


The  Law  of  Nations  435 

a  majority.  When  the  majority  is  fixed  and  certain, 
majority  rule  is  permanent  domination  of  the  minority 
by  the  majority.  Moreover,  majority  rule  is  just  only 
when  each  representative  understands  the  local  con- 
ditions and  circumstances  of  all  the  communities  rep- 
resented. Ignorance  of  the  majority  may  result  in  its 
permanent  imposition  of  unjust  rules  upon  the  minority. 
In  the  society  of  nations  there  is  always  danger  that  a 
majority  may,  through  ignorance  of  local  conditions, 
impose  unjust  laws  upon  a  minority.  Those  who  accept 
the  idea  that  the  society  of  nations  is  an  existing  fact 
and  that  it  is  the  law-giver  of  a  law  which  governs  the 
nations  and  regulates  them  in  their  common  ptirposes, 
are  in  reason  forced  to  believe  only  that  the  existing 
federal  government  of  the  society  of  nations  will  con- 
tinue to  evolve  along  its  present  lines.  They  will  not 
seek  to  abolish  the  present  federal  government  and  to 
establish  in  place  of  it  a  "parliament  of  man,"  but  will 
endeavor  by  investigation  and  study  to  invent  improve- 
ments in  the  existing  federal  government,  so  that  it 
may  more  and  more  perfectly  formulate  and  enforce 
the  supernational  law,  while  preserving  all  the  nations 
and  protecting  the  minority  of  them  from  being  per- 
manently dominated  or  ignorantly  imposed  upon  by 
the  majority. 


INTERNATIONAL  LAW  AND  POLITICAL 
SCIENCE 


437 


INTERNATIONAL  LAW  AND  POLITICAL 
SCIENCE 

Reprinted  from  "The  American  Journal  of  International  Law,"  April, 

1913. 

IT  is  a  truism  that  the  science  of  law  proper — the 
science  dealing  with  the  national  law  of  each  nation 
— is  very  different  from  the  science  of  what  is 
called  international  law.     In  the  study  of  the  law  of 
the  United  States  or  the  law  of  Great  Britain,  one  finds 
the  whole  science  based  on  the  fact  of  the  existence 
of  a  political  society  known  as  the  United  States  or 
Great  Britain,  which  formulates,  applies,  and  enforces 
the  law  which  governs  these  nations  in  their  internal 
relations.    When  one  enters  upon  the  study  of  what  is 
called  international  law,  one  finds  himself  expected  to 
accept  as  a  fundamental  proposition  that  there  is  no 
political  society  which  formulates,  applies  and  enforces 
the  law  which  he  is  told  governs  all  nations  in  their 
external  relations,  and  that  this  law  is  formulated,  ap- 
plied and  enforced  among  or  between  the  nations.    This 
difference  in  fundamentals  leads  to  corresponding  dif- 
ferences in  the  derivative  notions.    Practitioners  of  law 
proper  take  little  or  no  interest  in  what  is  called  inter- 
national law.     From  their  point  of  view,  that  which  is 
called  international  law  is  only  a  collection  of  the  rules 
of  a  highly  interesting  game,  success  in  which  depends 
largely  upon   "face"  and  personality;  nor  can  it  be 
denied  that  there  is  much  to  justify  this  opinion.    Stu- 
dents of  law  reflect  the  attitude  of  mind  of  the  practi- 

439 


440  The  American  Philosophy  of  Government 

tioner,  and  the  great  majority  of  students  end  their 
legal  education  when  they  finish  the  courses  in  national 
domestic  law,  giving  no  consideration  to  the  law  which 
governs  the  actions  and  relations  of  the  nations. 

In  recent  years,  the  development  of  what  is  known 
as  political  science,  which  is  the  science  dealing  with 
the  structure  and  working  of  political  societies,  has  ac- 
centuated the  difficulties  of  students  who  wish  to  gain 
some  knowledge  of  the  political  and  legal  affairs  of  the 
world.  They  study  the  structure  and  working  of  the 
town,  the  country,  the  state,  and  the  nation  for  the 
purpose  of  making  these  political  societies  more  eco- 
nomical and  efficient.  They  even  go  beyond  the  con- 
fines of  the  nation  and  study  the  structure  and  working 
of  vast  political  organisms  like  the  British  Empire  for 
the  same  purpose.  But  when  they  seek  to  apply  politi- 
cal science  to  the  structure  and  working  of  the  whole 
human  society,  they  are  confronted  by  a  prevalent 
idea  that  beyond  the  limits  of  nations,  or  at  least  be- 
yond the  limits  of  political  organisms  like  the  British 
Empire,  there  is  political  chaos.  They  are  taught  that 
the  nations  are  sovereign  and  independent,  but  that 
all  the  nations  have  the  mutual  attribute  of  solidarity. 
If  the  word  solidarity  is  given  its  technical  meaning, 
it  seems  not  to  imply  a  complete  or  a  federal  unity,  but 
rather  a  mutual  relationship  of  the  persons  or  societies 
concerned  under  an  implied  contract  of  each  with  each, 
and  with  all,  whereby  all  are  the  mutual  guarantors 
of  each  other.  In  this  technical  sense,  solidarity  of  the 
nations,  seems,  when  analyzed,  to  imply  a  universal 
extension  of  the  balance  of  power  system,  which  for 
four  centuries  has  drenched  Europe  with  blood.  If  the 
nations  are  mutually  guarantors  of  each  other,  it  neces- 
sarily follows  that  if  one  nation  becomes  expansive  or 
aggressive,  "international  solidarity"  compels  its  sur- 


Political  Science  441 

rounding  neighbors  to  ally  themselves  so  as  to  balance 
or  overbalance  the  power  of  the  aggressor  nation,  for 
the  purpose  of  holding  it  in  check.  This  is  exactly 
the  balance  of  power  system.  It  leads  to  shifting 
alliances,  ententes  and  concerts.  The  system  in  opera- 
tion is  essentially  a  military  game,  requiring  the  appli- 
cation of  rules  of  strategy.  It  is  the  antithesis  of  po- 
litical organization,  and  though  it  may  ultimately  lead 
to  political  organization  through  the  exhaustion  of  the 
parties  and  their  perception  of  the  waste  and  ineffi- 
ciency involved,  it  frequently  involves  a  military 
dictatorship  as  an  intermediate  process. 

But  the  march  of  events  is  modifying  this  technical 
meaning  of  solidarity,  and  the  word  is  coming  into 
popular  use  in  a  new  and  enlarged  sense  as  implying 
an  existing  unity,  federal  in  type,  of  the  whole  body 
of  the  peojjles  and  nations  of  the  world.  This  enlarged 
meaning  of  solidarity  is  apparently  due  to  the  effort 
of  the  public  mind  to  find  a  word  to  express  the  altered 
views  which  people  everywhere  are  beginning  to  have 
concerning  human  society  as  a  whole.  Educated  and 
uneducated  persons  alike,  familiarized  by  the  public 
press  with  the  doings  of  all  the  peoples  and  nations  of 
the  world  through  the  processes  of  modern  invention, 
now  understand  that  the  world  is  made  up  of  political 
societies  much  resembling  those  to  which  they  are 
accustomed.  It  is  becoming  more  and  more  impossible 
to  induce  the  average  man  to  believe  that  his  nation  is 
related  to  other  nations  after  the  manner  of  savages  or 
half -civilized  persons.  It  is  becoming  increasingly  easy 
for  him  to  realize  that  all  the  peoples,  countries,  states, 
nations,  and  empires  of  the  world  are  in  fact,  by  the 
necessity  of  the  case  and  by  their  own  consent,  imited 
into  one  great  political  organism  and  society.  It  has 
become  necessary  to  give  this  inclusive  society  a  name, 


442  The  American  Philosophy  of  Government 

and  the  name  of  "the  society  of  nations"  is  rapidly 
becoming  attached  to  it — not  because  the  name  is 
scientific  and  strictly  accurate,  but  because  it  is  brief 
and  expresses  fairly  well  the  idea  intended. 

The  fact  seems  to  be  that,  in  this  last  decade,  there 
has  occurred  what  may  be  termed  in  some  sense  a 
peaceful  revolution  and  in  some  sense  a  renaissance. 
There  has  been  during  this  period  a  change  of  thought 
away  from  the  accepted  philosophy  and  a  taking  up 
with  a  new  philosophy  of  a  higher  type.  For  a  political 
economy  which  regarded  human  happiness  as  based  on 
production  and  distribution  of  commodities,  and  made 
credit — the  inviolableness  of  contracts — the  prime  req- 
uisite, there  is  being  everywhere  established  a  political 
philosophy  which  is  based  on  the  moral  worth  and  dig- 
nity of  the  individual,  and  insists  that  contracts  and 
relationships  inconsistent  with  this  dignity  are  not  of 
binding  force.  All  contracts  and  relationships  are  sub- 
jected to  this  test  of  invalidity,  and,  as  all  social  and 
political  organization  is  in  its  last  analysis  only  a  system 
of  individual  contracts  and  relationships,  all  such  or- 
ganization is  being  subjected  to  the  same  test.  Thus, 
all  forms  of  social  and  political  organization  which  are 
inconsistent  with  the  moral  worth  and  dignity  of  the 
individual  are  coming  to  be  regarded  as  void,  and 
governments  are  considered  to  be  just,  economical,  and 
efficient,  not  according  as  they  protect  the  production 
and  distribution  of  commodities,  but  according  as  they 
recognize,  protect,  and  preserve  the  moral  worth  and 
dignity  of  each  and  all  individuals.  Political  organiza- 
tion is  thus  regarded  as  an  inseparable  incident  of 
human  life  and  as  an  attribute  of  the  individual.  In 
other  words,  we  are  changing  to  a  philosophy  which 
treats  political  organization  and  government  as  in  part 
an  attribute  and  in  part  a  creation  of  man.    Where  two 


Political  Science  443 

human  beings  exist  together,  contracts,  and  relation- 
ships exist  between  them  and  they  form  a  community, 
in  spite  of  themselves,  which  is  a  political  organization 
and  a  government.  Political  organization  and  govern- 
ment are,  in  this  new  philosophy,  regarded  as  neces- 
sities which  the  individual  must  have  whether  he  will 
or  not,  just  as  he  must  breathe  air  or  drink  water.  He 
may  take  government  in  a  crude  and  harmful  form  just 
as  he  may  breathe  bad  air,  or  drink  polluted  water; 
but  he  cannot  avoid  being  in  contractual  or  actual 
relationship  with  other  human  beings  and  hence  form- 
ing a  political  organization  with  them  any  more  than 
he  can  avoid  breathing  or  drinking.  All  he  can  do  is  to 
see  to  it  that  he  gets  pure  government,  pure  air,  and 
pure  water. 

This  new  philosophy,  as  has  been  said,  is  gradually 
making  it*  way,  tempering  the  harshness  of  the  old  trade 
and  credit  economy.  That  philosophy  had  resulted  in 
the  sacrifice  of  human  life  and  dignity  to  the  production 
and  distribution  of  goods,  in  the  inviolability  of  contracts 
even  though  they  called  for  the  sacrifice  of  life  and  dignity, 
and  in  free  competition  whereby  the  strongest  might 
overcome  the  others  and  establish  any  relationships 
with  the  vanquished  even  to  the  destruction  of  life 
and  dignity.  The  new  philosophy  is  altering  the  out- 
look of  the  individual  upon  all  kinds  of  social,  economic, 
and  political  organization.  Each  individual  recognizes 
all  kinds  of  organization  as  a  possible  means  of  extend- 
ing his  own  powers,  though  capable  of  being  perverted 
so  as  to  injure  or  destroy  him.  He  is  beginning  to 
understand  that  organization  exists  and  that  all  he  can 
do  is  to  change  it;  and  as  he  seeks  for  a  limit  to  the 
extension  of  organization,  his  mind  refuses  to  stop  short 
of  the  whole  human  society.  As  each  human  being  is 
born  a  citizen  of  his  city,  a  citizen  of  his  state,  or  a 


444  The  American  Philosophy  of  Government 

citizen  of  his  nation,  so  also,  it  is  being  realized,  he  is 
born  a  citizen  of  that  great  inclusive  society  composed 
of  all  the  peoples  and  nations  of  the  world.  He  may 
change  his  citizenship  in  the  city,  the  state,  or  the 
nation ;  but  his  citizenship  in  this  great  inclusive  society 
which,  for  want  of  a  better  name,  we  call  "the  society 
of  nations"  is  permanent  and  unchangeable.  He  cannot 
escape  this  citizenship;  he  can  only  improve  the  or- 
ganization so  as  to  make  it  more  consistent  with  the 
moral  worth  and  dignity  of  himself  and  all  other  human 
beings.  Nor  can  the  whole  body  of  the  peoples  of  the 
world  by  any  action  prevent  the  society  of  nations  from 
existing.  They  cannot  even  ignore  it,  for  once  it  is 
recognized,  it  becomes  the  only  permanent  human 
institution,  and  an  object  of  the  solicitous  care  of  the 
peoples  and  nations ;  for  through  the  society  of  nations, 
the  nations  as  well  as  the  individual  realize  the  fullest 
extension  of  their  powers. 

It  requires  but  a  moment's  reflection  on  the  part  of 
an  intelligent  person  to  perceive  that  if  the  common 
sense  and  judgment  of  the  world  accept  the  society 
of  nations  as  a  part  of  present  day  practical  politics, 
it  can  be  made  a  subject  of  study  by  political  science 
exactly  in  the  same  way  as  a  town,  a  city,  a  state,  a 
nation  or  an  empire.  In  this  view,  the  law  which 
governs  the  nations  is  the  law  which  is  imposed  on  the 
nations  by  the  society  of  nations.  The  nations  obey 
this  law  not  because  they  wish  to  do  so,  or 
because  they  agree  to  do  so,  or  because  they  re- 
gard it  as  a  matter  of  honor  to  do  so,  but  because 
the  peoples  and  nations  of  the  world  recognize  them- 
selves as  together  forming  a  political  society  which  is 
greater  than  any  nation  and  which  includes  all  nations, 
and  have  delegated  to  that  society  the  function  of 
formulating,  applying  and  enforcing  a  constitution  and 


Political  Science  445 

law  for  the  common  and  general  purposes  of  all  the 
nations.  The  constitution  and  law  so  formulated  by 
this  political  society  by  virtue  of  its  delegated  power, 
bind  the  separate  nations  and  their  peoples  in  the  same 
way  that  the  constitution  and  law  of  the  United  States 
bind  the  States  of  the  United  States  and  their  peoples. 
That  which  is  called  international  law  is  thus  seen  to 
be  the  law  of  the  society  of  nations,  or,  to  use  the  briefer 
and  more  popular  expression,  the  law  of  nations. 

It  is  true,  there  are  difficulties  in  the  way  of  the 
acceptance  of  these  modern  notions.  In  the  society 
of  nations  there  is  nothing  to  be  found  exactly  resem- 
bling a  constitutional  convention,  a  legislature,  an 
executive  or  a  court,  as  we  know  these  institutions  in 
our  national  life.  Nevertheless,  in  the  society  of  nations 
one  may  distinguish  and  identify  crude  institutions  of  a 
constitution-making,  legislative,  executive  and  judicial 
character  and  may  discover  crude  constitution-making, 
legislative,  executive  and  judicial  processes  going  on 
by  which  the  constitution  and  law  of  the  society  of 
nations  are  gradually  being  formulated,  and  by  which 
those  constitutional  and  legislative  provisions  which 
have  been  formulated  are  being  interpreted,  applied 
and  enforced. 

When  the  society  of  nations  is  further  studied  accord- 
ing to  the  methods  and  principles  of  political  science, 
it  will  be  found  that,  although  it  is  in  the  primitive 
stages  of  organization,  it  even  now  bears  a  general 
resemblance  to  a  federal  state.  The  central  govern- 
ment at  the  present  time  will  be  found  to  be  deposited 
in  commission,  and  the  commission  is  of  so  indefinite 
and  changeable  a  character  as  to  be  hardly  recognizable. 
The  Hague  Conferences  and  the  Hague  Tribunals  have 
tended  to  visualize  the  central  government  of  the  society 
of  nations,  but  these  institutions  are,  after  all,  but  a 


446  The  American  Philosophy  of  Government 

fractional  part  of  the  institutions  which  even  at  the 
present  moment  constitute  the  central  government. 
The  indefiniteness  concerning  the  location  of  the 
central  government  and  concerning  the  nature 
and  extent  of  its  powers  leads  to  a  corresponding 
indefiniteness  respecting  the  residual  powers  of  the 
various  nations.  The  nations,  on  account  of  these 
deficiencies  in  the  central  government,  are  obliged 
to  act  in  a  double  capacity,  and  at  times  not  only  to 
perform  their  own  domestic  functions,  but  to  exercise 
the  functions  of  the  central  government.  Thus, 
though  the  principles  of  federal  government  are  to  be 
taken  as  a  general  guide  in  studying  the  structure  and 
working  of  the  society  of  nations  as  a  matter  of  political 
science,  and  in  studying  the  law  of  the  society,  these 
principles  are  subject  to  many  qualifications  and 
variations,  due  to  the  present  indefiniteness  of  the 
organization  of  that  society. 

For  the  purpose  of  showing  how  the  acceptance  of 
the  society  of  nations  as  a  fact  of  practical  politics  alters 
the  fundamental  principles  of  the  law  which  governs 
the  nations,  it  will  be  attempted  to  state  these  princi- 
ples.   Such  a  statement  might  be  as  follows: 

I.  The  society  of  nations  is  a  political  society  com- 
posed of  all  the  peoples,  countries,  states,  nations  and 
empires  of  the  world.  It  exists  by  its  own  recognition 
of  its  existence,  having  no  human  superior.  It  is  per- 
manently instituted  by  the  necessity  of  the  case  and 
by  the  common  consent  of  all  the  peoples,  countries, 
states,  nations  and  empires  as  their  supreme  organ  for 
formulating,  applying  and  enforcing  their  conscience 
and  will  as  respects  the  general  measures  necessary 
for  their  common  protection  and  welfare,  and  for  the 
preservation  of  the  component  nations  and  political 
societies  without   change  except  as  may  be  needful 


Political  Science  447 

for  the  common  good.  The  society  of  nations  estab- 
lishes and  maintains  such  constitution-making,  legis- 
lative, executive  and  judicial  institutions  and  processes, 
as  are  considered  by  the  people  and  nations  of  the 
society  to  be  best  adapted  for  these  purposes  respec- 
tively. 

2.  The  law  of  the  society  of  nations  is  the  body  of 
rules,  duly  formulated,  applied  and  enforced  by  the 
society  of  nations  through  appropriate  institutions 
and  processes,  regulating  the  actions  and  relations 
of  the  nations  and  their  citizens.  This  law  extends 
only  to  the  common  and  general  purposes  of  the  nations 
and  the  whole  society,  and  resembles  the  federal  law 
in  a  federal  state. 

3.  The  law  of  the  society  of  nations  (like  the  law 
of  all  states,  particularly  the  law  of  federal  states)  is 
divided  into  three  grades — the  organic  (or  constitu- 
tional) law,  the  statutory  law,  and  the  customary 
(or  common)  law.  The  organic  law  is  superior  to  both 
the  statutory  and  the  customary  law.  The  statutory 
law  is  superior  to  the  customary  law.  The  organic 
(or  constitutional)  law  is  composed  of  those  principles 
which  are  so  fundamental  and  permanent  as  to  be 
indispensable  to  the  structure  and  organic  existence 
of  the  society.  The  statutory  law  is  composed  of  those 
principles,  consistent  with,  dependent  upon  and  in 
support  of  the  organic  law,  which  are  formulated  and 
established  by  legislative  institutions  and  methods. 
The  customary  (or  common)  law  is  composed  of  those 
principles,  consistent  with,  dependent  upon  and  in 
support  of  the  organic  and  statutory  law,  which  are 
formulated  and  declared  by  courts  or  judicial  tribimals 
in  cases  arising  before  them,  based  on  common  and 
accepted  custom  of  the  peoples  and  nations  of  the 
society. 


44^  The  American  Philosophy  of  Government 

4.  The  present  organization  of  the  society  of  nations 
being  indefinite,  the  uhimate  constitution-making, 
legislative,  executive  and  judicial  power  of  the  society 
is  for  the  present  vested  in  the  nations,  acting  col- 
lectively or  separately  as  the  organs  of  the  society. 
The  highly  civilized  and  well-armed  nations  take  the 
lead  in  formulating,  applying  and  enforcing  the  con- 
stitution and  law  of  the  society,  partly  by  the  general 
consent,  and  partly  by  the  necessity  of  the  case;  but 
all  the  nations  are  at  liberty  to  formulate,  apply  and 
enforce,  individually  or  by  agreement,  such  principles 
as  they  may  consider  it  probable  the  society  of  nations 
would  formulate,  apply  and  enforce  in  the  circum- 
stances. The  use  of  armed  forces  by  separate  nations 
to  establish  justice  and  maintain  order,  in  execution 
of  the  constitution  and  law  of  the  society  of  nations, 
is  justifiable,  and  is  not  to  be  regarded  as  war,  but  as 
constabulary  action  in  the  name  of  the  executive  power 
of  the  society  of  nations. 

5.  Nations,  states,  or  countries,  may  form  any  sort 
of  relations  or  make  any  contracts  with  each  other 
which  are  not  self -destructive  as  respects  either  party 
or  destructive  as  respects  third  parties,  and  which 
are  not  opposed  to  the  constitutional  dispositions  of 
jurisdiction  accepted  by  the  society  of  nations,  or  to 
the  limitations  imposed  upon  the  nations  by  the  con- 
stitution of  the  society.  When  a  relationship  is  thus 
established,  or  a  contract  is  thus  made,  the  same 
principles  apply  in  interpreting  the  relation  or  contract 
as  are  applied  in  interpreting  similar  relationships  or 
contracts  between  individuals  or  corporations,  or 
between  the  states  of  a  federal  union;  but  these  prin- 
ciples are  to  be  applied  only  by  way  of  analogy. 

6.  All  differences  between  nations  with  respect  to 
which  there  exists  a  duly  formulated  and  settled  prin- 


I 


Political  Science  449 

ciple  of  the  organic  law  of  the  society  of  nations  and 
also  a  duly  formulated  statutory  principle  or  an  estab- 
lished custom  consistent  with  such  organic  principles, 
or  with  respect  to  which  the  parties  are  able  to  agree 
upon  principles  which  are  to  be  regarded  as  principles 
of  the  law  of  the  society  of  nations  for  the  purposes 
of  the  case,  if  not  settled  by  agreement,  may  be  settled 
by  arbitration  or  by  the  decision  of  a  court  of  the  society 
of  nations.  Where  there  are  no  such  principles,  and 
the  parties  are  unable  to  agree  upon  such  principles 
for  the  purposes  of  the  case,  other  nations  may  mediate 
for  the  purpose  of  finding  a  way  to  settle  the  difference, 
or  the  matter  may  be  postponed  to  await  the  formula- 
tion and  establishment  of  the  applicable  principles 
by  a  conference  of  all  the  nations  or  of  all  the  nations 
interested;  and  it  is  the  duty  of  all  nations  to  urge 
such  postponement,  and  to  cooperate  for  the  formula- 
tion and  establishment  of  such  principles.  When 
such  postponement  is  impossible,  armed  force  applied 
by  one  nation  against  another  to  compel  it  to  recognize 
a  principle  of  the  law  of  the  society  of  nations  which 
approves  itself  to  the  common  juridical  conscience 
of  the  world,  is  justifiable. 

7.  Treaties  between  nations  for  the  arbitration  of 
disputes  between  them  not  capable  of  settlement  by 
agreement,  or  for  the  submission  of  such  disputes  to 
judicial  settlement,  should  exclude  all  cases  which 
involve  a  principle  of  the  organic  law  of  the  society  of 
nations  which  has  not  been  formulated  and  settled 
by  the  constitution-making  action  of  the  nations, 
since  it  is  not  the  function  of  arbitral  tribunals  or 
courts  to  formulate  and  settle  the  organic  law  of  the 
society  of  nations.  These  principles  can  only  be  settled 
by  the  nations  directly,  either  by  joint  agreement, 
or  by  the  insistence  of  one  or  more  nations  backed  by 

39 


450  The  American  Philosophy  of  Government 

armed  force  if  necessary,  supported  by  the  common 
juridical  conscience  of  the  world.  In  an  arbitration 
or  judicial  settlement  of  disputes  other  than  those 
last  mentioned,  under  a  general  arbitration  treaty, 
the  tribtmal  or  court  is  to  apply  the  settled  principles 
of  the  organic,  the  statutory,  and  the  customary  law 
of  the  society  of  nations  in  the  order  of  superiority 
as  above  stated.  In  interpreting  settled  principles  of 
the  organic  law  of  the  society  of  nations,  the  tribunal 
or  court  is  to  be  guided  by  analogy  drawn  from  the 
principles  of  the  constitutional  law  of  states  and  nations, 
and  particularly  by  analogy  drawn  from  the  federal 
constitutional  law  of  federal  states.  In  interpreting 
settled  statutory  rules  of  the  law  of  the  society  of  nations 
not  inconsistent  with  the  organic  law,  the  tribunal 
or  court  is  to  be  guided  by  analogy  drawn  from  the 
rules  of  the  law  of  states  and  nations  relating  to  the 
interpretation  of  statutes,  and  particularly  by  analogy 
drawn  from  the  rules  relating  to  the  interpretation 
of  federal  statutes  in  federal  states.  In  declaring  and 
interpreting  the  customary  law  of  the  society  of  nations 
not  inconsistent  with  the  organic  and  statutory  law, 
the  tribunal  or  court  is  to  consider  all  treaties  and  all 
national  statutes  or  judicial  decisions  involving  prin- 
ciples applicable  to  the  case,  and  is  to  be  guided  by 
analogy  drawn  from  the  statutory  and  customary 
law  of  states  and  nations,  and  particularly  by  analogy 
drawn  from  the  federal  statutory  and  common  law  in 
federal  states.  Such  analogies  are  not  to  be  pushed 
to  the  point  where  national  rights  of  self -protection 
and  self-preservation  would  be  endangered  by  pre- 
mature or  excessive  admixture  of  peoples  in  different 
stages  of  civilization  or  of  divergent  ideas  or  sentiments, 
or  by  unregulated  economic  competition;  but  all 
reasoning  by  analogy  drawn  from  state  or  national 


/ 


Political  Science  451 

action  is  to  be  subject  to  national  rights  of  self -protec- 
tion and  self-preservation,  since  the  existence  of  the 
nations  is  fundamental  to  the  existence  of  the  society 
of  nations.  When  disputes  arise  between  nations 
under  treaties,  the  tribunal  or  cotirt  is  to  consider  the 
treaties  themselves  as  subject  to  the  law  of  the  society 
of  nations.  Treaties  found  by  the  court  to  be  repugnant 
to  the  law  of  the  society  of  nations  are  to  be  held  con- 
trary to  public  policy  and  void,  to  the  extent  that 
they  are  so  repugnant,  and  the  case  is  to  be  decided 
according  to  the  law  of  the  society  of  nations. 

8.  The  autonomy  of  all  nations  is  inviolable  except 
where  the  autonomy  of  a  nation  is  opposed  to  the 
constitution  and  law  of  the  society  of  nations  and  is 
inconsistent  with  the  peace  and  welfare  of  the  society. 
An  entry  by  a  nation  into  the  territory  of  another  in 
the  name  of  the  executive  power  of  the  society  of 
nations,  must  be  based  on  an  intolerable  condition  of 
anarchy  there  prevailing  or  upon  a  breach  of  the  law 
of  the  society  of  nations  by  the  nation  entered,  of  so 
serious  a  character  as  to  render  restraint  or  punish- 
ment of  the  nation  necessary,  in  the  interests  of  the 
society  of  nations;  and  the  constabulary  power  thus 
applied  must  be  only  carried  to  the  extent  necessary 
to  effect  the  necessary  reorganization  of  the  nation 
thus  policed.  If  entry  by  armed  force  is  made  without 
due  cause  by  one  nation  into  the  territory  of  another, 
the  nation  entered  has  the  right  to  use  its  armed  force 
in  self-defense;  and  the  right  of  self-defense  exists 
when,  after  lawful  entry  by  a  nation,  it  attempts  the 
destruction  or  excessive  punishment  of  the  nation 
entered. 

9.  An  entry  by  a  nation  into  the  territory  of  another 
nation,  made  by  means  of  armed  force,  even  though 
lawful  as  an  exercise  of  the  executive  power  of  the 


452  The  American  Philosophy  of  Government 

society  of  nations,  gives  of  itself  to  the  constabulary 
nation  no  right  to  territory  or  property  of  the  nation 
policed;  but  a  transfer  of  the  territory  of  the  nation 
thus  policed,  or  an  indemnity,  may  be  awarded  to 
the  constabulary  nation  by  the  concert  of  the  nations 
or  by  the  concert  of  the  interested  nations,  of  such 
extent  or  amount  as  may  be  proper,  considering  its 
expenditure  or  loss  and  all  other  circumstances. 

It  will  be  noticed  that  in  the  above  statement  of 
the  fundamental  principles  of  the  law  of  the  society 
of  nations,  there  is  a  wide  departure  from  the  various 
Codes  de  la  Paix  with  which  the  pacifist  literature 
abounds;  in  that  the  application  by  a  nation  of  armed 
force  outside  its  limits  is  not  considered  as  in  all  cases 
unjustifiable  and  illegal.  Such  principles  are  undoubt- 
edly inconsistent  with  immediate  disarmament,  but 
they  are,  it  may  be  confidently  asserted,  the  only 
principles  likely  to  bring  about  a  general  condition  of 
peace.  The  recognition  of  the  society  of  nations  as  an 
existing  fact  gives  a  basis  for  distinguishing  between 
those  applications  of  armed  force  by  nations  which 
are  and  ought  to  be  lawful  as  exercises  of  the  executive 
power  of  the  society  of  nations,  and  those  which  are  and 
ought  to  be  unlawful  as  acts  of  robbery  or  oppression. 
Any  application  of  armed  force  by  a  nation  against 
another  which  tends  to  support  at  the  same  time  the 
nations  and  the  society  of  nations  is  and  of  right  ought 
to  be  lawful,  and  armed  force  directed  by  a  nation 
so  as  to  produce  the  contrary  effect  is  and  ought  to 
be  unlawful.  Being  thus  able  to  distinguish  between 
constabulary  action  and  war,  it  remains  only  to  educate 
public  sentiment  so  that  more  and  more  the  application 
of  armed  force  by  the  nations  shall  in  fact  be  constabu- 
lary action  in  the  name  of  the  executive  power  of  the 
society  of  nations.    As  the  area  of  constabulary  action 


Political  Science  453 

increases,  the  area  of  war  necessarily  diminishes.  As 
the  peoples  and  nations  of  the  world  become  more  and 
more  habituated  to  the  notion  of  the  application  of 
armed  force  by  the  nations  for  the  constabulary  pur- 
poses of  the  whole  society,  separate  nations  will  grad- 
ually become  anxious  to  rid  themselves  of  this  con- 
stabulary burden  and  will  be  ready  to  unite  in  forming 
some  plan  for  delegating  their  constabulary  responsi- 
bilities. When  this  occurs  war  will  be  abolished  in 
the  society  of  nations  by  exactly  the  same  process  that 
individual  fighting  and  private  war  have  been  abolished 
in  the  separate  nations — that  is,  by  political  organiza- 
tion. The  crude  constitution-making,  legislative,  execu- 
tive and  judicial  institutions  and  processes  which  now 
exist  in  the  society  of  nations  will  gradually  be  improved 
upon  and  rendered  more  definite  and  efficient,  and  some 
kind  of  arrangement  will  ultimately  be  made  which 
will  minimize  the  burden  of  constabulary  action  and 
preserve  the  general  peace  and  order. 

From  what  has  been  said,  it  may,  it  would  seem,  be 
concluded  that  international  law  in  its  literal  and  tech- 
nical sense  as  law  between  or  among  nations  is  destined 
gradually  to  pass  into  the  oblivion  which  awaits  out- 
worn sciences  and  philosophies,  both  because  such  a 
law  is  inherently  impossible  as  a  matter  of  jurisprudence, 
and  because  it  cannot  be  squared  with  the  principle 
of  political  science.  If  the  name  international  law  is 
retained,  therefore,  it  must  be  given  an  enlarged 
meaning,  so  that  it  shall  in  fact  mean  the  law  of  the 
society  of  nations.  Such  a  meaning  has  already  been 
attempted  to  be  attached  to  it  by  many  writers,  and 
from  the  time  of  Grotius  the  society  of  nations  has  been 
recognized  by  publicists  in  a  figurative  sense.  What 
is  now  needed  is,  that  publicists  should  accept  the 
society  of  nations  not  in  a  figurative  but  in  a  literal 


454  The  American  Philosophy  of  Government 

sense,  as  an  existing  and  permanent  fact  of  practical 
politics — as  a  political  organization  having  a  concrete 
existence  just  as  really  as  has  the  United  States  or  as 
has  Great  Britain.  Until  recently,  the  facts  of  inter- 
national life  have  made  men  in  practical  politics 
hesitate  to  accept  this  fact  and  have  compelled  them 
to  adopt  compromise  notions.  Violent  insistence  upon 
national  sovereignty  has  required  equally  violent 
assertions  of  national  sovereignty  in  return.  The 
\x  V  situation  has  now  changed,  and  almost  without  our 
^  notice  the  facts  of  international  life  have  become  such 
that  the  conception  of  a  society  of  nations  and  of  a  law 
of  this  society  has  become  more  reasonable  as  a  working 
basis  of  action  than  the  conception  of  the  nations  as 
wholly  sovereign  and  wholly  independent,  living  under 
agreements  with  each  other  which  they  choose  to  regard 
as  law. 

No  doubt  for  a  long  time  to  come  there  will  be  few 
principles  of  the  law  of  the  society  of  nations  which 
will  be  so  definitely  formulated  and  established  that 
any  national  court  would  think  of  applying  them  in 
superiority  to  a  treaty  or  a  national  law  with  which 
they  should  conflict.  As  international  tribunals  in- 
crease, however,  the  question  of  the  effect  which  should 
be  given  to  principles  of  the  law  of  nations  as  con- 
trolling and  superseding  treaties  and  national  laws 
inconsistent  with  these  principles  will  become  a  press- 
ing one.  If  the  Court  of  Arbitral  Justice  is  established 
at  The  Hague,  it  will  be  essential  to  its  success  that  the 
principles  of  the  law  of  the  society  of  nations  should, 
within  the  sphere  suitable  for  that  law,  control  and 
supersede  all  conflicting  treaties  and  national  laws. 
That  court  already  exists  in  principle  by  the  action  of 
the  Second  Hague  Conference.  It  wants  only  the 
appointment  of  the  judges.     Once  established,  it  will 


Political  Science  455 

be  a  court  of  the  society  of  nations.  If  it  gives  effect 
to  all  treaties  and  all  national  laws  which  bear  on  the 
cases  brought  before  it,  without  ascertaining  whether 
or  not  they  conflict  with  the  organic,  statutory  or 
customary  law  of  the  society  of  nations,  it  will  abdicate 
its  high  function  and  become  merely  a  part  of  the 
diplomatic  machinery  of  the  disputing  nations.  Thus 
in  a  very  concrete  sense,  the  idea  that  a  society  of 
nations  exists  and  that  it  has  formulated  and  is  formu- 
lating a  federal  law  which  within  the  sphere  of  the 
common  interests  is  superior  to  treaties  between  the 
nations  and  superior  to  the  municipal  law  of  each  nation, 
is  of  service  at  the  present  time ;  for  on  the  acceptance 
of  this  idea  depends  the  establishment  of  the  Court 
of  Arbitral  Justice  at  The  Hague. 

But  even  if  we  leave  out  of  consideration  the  pro- 
posed new  court  at  The  Hague,  and  Ibbk  solely  at  the 
general  benefit  to  be  derived  from  the  prevalence  of 
this  idea,  we  may  find  good  reasons  for  accepting  it. 
It  is  to  be  noticed  that  the  society  of  nations  has  no 
human  superior,  and  that  it  exists  not  by  any  external 
recognition,  but  by  the  mental  and  psychological 
action  of  the  individuals  who  compose  it.  No  formal 
federation  of  the  nations  is  necessary.  It  is  only 
necessary  for  the  peoples  and  nations  of  the  world  to 
recognize  themselves  as  forming  one  organized  political 
society.  Each  individual  and  nation  is  as  important 
as  any  other  in  exercising  the  power  of  recognition, 
and  each  individual  or  nation  is  equally  entitled  to 
participate  in  the  work  of  improving  the  organization 
of  the  society  to  which  he  belongs.  Historians  have 
noted  that  the  beginning  of  the  real  progress  of  a 
nation  occurs  when  its  people  realize  their  existence 
as  a  nation,  and  come  to  understand  that  the  nation  in 
the  hands  of  the  people  can  be  made  one  of  the  greatest 


456  The  American  Philosophy  of  Government 

means  for  extending  the  power  of  the  individual  and 
enabling  him  to   increase  his   own  happiness.      Out 
of  such  a  popular  conception  of  the  nation  and  of  the 
possibilities  of  individual  good  to  be  derived  from  an 
economical   and   efficient   national   organization,    has 
developed  the  whole  system  of  democratic  represen- 
tative   and    responsible    government,    whereby    each 
person  capable  of  intelligent  judgment  is  enabled  to 
participate,   in  an  orderly  and  appropriate  manner, 
in  the  direction  of  each  political  organization  of  which 
he  is  a  member.     On  such  ideas  is  based  the  present 
progressive  movement,  which  is  extending  throughout 
the  world.    That  movement  is,  in  each  nation,  a  con- 
scious effort  of  individuals,  parties  and  corporations 
to  invent  improvements  in  existing  political  organiza- 
tion, so  that  town,  city,  state  and  nation  may  in  their 
respective    spheres    operate    more    economically    and 
efficiently  in  extending  the  powers  of  the  individual 
and  enabling  him  to  increase  his  happiness.    A  similar 
consciousness,  shared  by  all  the  peoples  of  the  world, 
of  the  existence  of  the -society  of  nations  as  the  one 
permanent   and    all-inclusive    nation,    and    a   similar 
appreciation  by  them  of  the  possibilities  of  human 
betterment  through  improvements  in  the  organization 
and  working  of  this  great  society,  must,  it  would  seem, 
necessarily  result  in  broadening  the  progressive  move- 
ment, and  lead  to  a  conscious  and  persistent  effort 
of  individuals,  parties  and  corporations  in  all  parts  of 
the  world,  directed  toward  improvements  in  the  organ- 
ization of  this  great  nation,  to  the  end  that  it,  too,  may 
be  made  more  efficient  in  extending  the  powers  of  the 
individual  and  enabling  him  to  increase  his  happiness. 
As  such  conscious  efforts  applied  within  each  nation 
by  its  citizens  have  always  resulted  in  a  notable  increase 
in  the  prevalence  of  justice,  order  and  peace  among 


Political  Science  457 

the  individuals  forming  the  nation;  so  similar  efforts 
by  citizens  of  the  society  of  nations  may  ultimately 
result  in  a  prevalence  of  justice,  order  and  peace  among 
the  scattered  and  diverse  peoples  and  nations  which 
together  form  the  society  of  nations,  in  some  degree 
approaching  that  which  each  nation  now  enjoys  within 
its  own  borders. 

Lest  what  has  been  said  may  be  thought  to  furnish 
some  support  for  those  who  seek  the  immediate  federa- 
tion of  the  world  under  a  *  'parliament  of  man' '  enacting 
a  "world-law,"  let  it  be  said  that  there  is  nothing  in 
the  foregoing  which  is  intended  to  give  support  to  any 
such  idea.  The  form  which  the  organization  of  the 
society  of  nations  will  take,  and  the  changes  in  the 
constitution-making,  legislative,  executive  and  judicial 
processes  of  the  society  which  will  occur,  as  the  result 
of  progressive  improvement,  it  is  impossible  to  foretell. 
It  may  well  be  that  the  ultimate  form  will  be  quite 
different  from  anything  yet  known,  and  one  which 
would  be  unimaginable  at  the  present  time. 


THE  PARTICIPATION   OF  THE   ALIEN  IN 

THE  POLITICAL  LIFE  OF  THE 

COMMUNITY 


459 


THE  PARTICIPATION  OF  THE  ALIEN  IN 

THE  POLITICAL  LIFE  OF  THE 

COMMUNITY 

Address  delivered  at  the  Annual  Meeting  of  the  American  Society  of 

International  Law,  held  at  Washington,  April  27-29,  191 1. 

Reprinted  from  the  Proceedings  of  the  Society  for  the  year  191 1. 

IN  discussing  this  subject,  it  is  necessary,  first  of  all, 
to  distinguish  between  the  political  rights  of  the  indi- 
vidual— whether  he  be  a  citizen  or  an  alien — and  his 
civil  rights.  By  political  rights  we  mean  his  rights  to 
exercise  the  power  of  voting  and  of  governing.  By 
civil  rights  we  mean  his  social  and  economic  rights — 
his  rights  of  life,  liberty,  and  property.  It  is  settled 
by  the  consensus  of  the  civilized  world  that  political 
rights  are  not  universal,  like  the  rights  of  life,  liberty, 
and  property,  but  that  they  are  special  rights,  or  privi- 
leges, to  which  some  persons  in  every  community  are 
justly  entitled  and  others  are  not.  The  rights  of  life, 
liberty  and  property  correspond  to  the  three  attributes 
of  life,  motion  and  prehension,  with  which  every  human 
being  is  endowed  by  his  Creator,  and  the  exercise  of 
which,  under  proper  conditions  and  limitations,  is 
essential  to  the  existence  of  every  human  being.  Accord- 
ingly they  are  universal,  and  civilized  nations  recog- 
nize a  rule  of  supreme  law  securing  these  civil  rights. 
On  the  other  hand,  the  right  to  vote  and  to  govern 
corresponds  to  the  attribute  of  judgment,  which  is  not 
common  to  all,  and  is  possessed  only  by  sane  civilized 
adults,  who  have  been  educated  in  judgment.     Each 

461 


462  The  American  Philosophy  of  Government 

nation,  within  reasonable  limits,  determines  for  itself 
who  have  the  requisite  judgment  to  be  able,  with  ad- 
vantage to  the  community,  to  exercise  the  power  of 
voting  and  governing.  The  decision  of  the  Supreme 
Court  of  the  United  States,  in  1874,  in  the  case  of 
Minor  v.  Happersett  (21  Wallace,  162),  in  which  it  was 
held  that  participation  in  the  political  life  of  a  State 
of  the  Union  was  not  a  right  of  life,  liberty  or  property, 
nor  a  necessary  incident  to  citizenship  of  the  United 
States,  was  but  an  application  of  the  established  cus- 
tomary law  of  the  society  of  nations. 

Considering  now  the  various  ways  in  which  the  resi- 
dent alien  may  participate  in  the  political  life  of  the 
community,  we  take  up  first,  his  participation  in  its 
abnormal  political  life.  Naturally,  participation  in 
proceedings  designed  to  produced  anarchy  comes  first. 
Here  it  makes  no  difference  whether  the  alien  is  a  resi- 
dent or  a  mere  visitor  in  the  country.  The  offence  of 
preaching  anarchy  or  acting  in  accordance  with  an- 
archistic principles,  is  an  offence  against  all  nations 
individually  and  against  the  society  of  nations.  The 
interposition  of  the  nation  of  which  such  a  resident 
alien  is  a  citizen,  would  be  confined  to  seeing  that  the 
offence  was  fairly  proved  and  that  cruel  or  unusual 
punishment  was  not  applied.  Anarchists  are  inter- 
national outlaws  and  are  to  be  treated  as  such. 

Participation  by  resident  aliens  in  open  revolutionary 
movements  raises  an  entirely  different  set  of  questions. 
A  revolutionary  movement  may  be  morally  right  and 
necessary  as  the  only  means  of  preventing  oppression 
by  a  government  which  is  persistently  acting  contrary 
to  the  ends  of  its  institution  and  violating  the  rights 
of  the  individual  to  his  life,  liberty  or  property.  The 
movement  is  not  for  the  overthrow  of  all  government, 
but  for  the  deposition  of  certain  persons  claiming  to  be 


The  Alien  in  the  Community  463 

a  particular  government.  If  a  revolutionary  move- 
ment succeeds,  the  revolutionists  form  the  government 
of  the  nation.  Participation  by  resident  aliens  in  revo- 
lutionary movements  may,  however,  bring  upon  them 
the  vengeance  of  the  government,  or  be  a  cause  for 
complaint,  by  the  government,  against  the  nation  of 
which  the  aliens  are  residents,  or  may  be  invoked  as 
justification  for  revoking  concessions  made  to  resident 
aliens;  and  if  the  resident  aliens  appeal  to  their  nation, 
the  nation  has  to  determine  its  course  according  to  the 
needs  of  the  situation  as  viewed  from  its  own  stand- 
point and  from  the  standpoint  of  the  society  of  nations. 
Considering  the  danger  to  the  peace  of  the  world  from 
revolutionary  movements  and  the  desirability  of  hav- 
ing political  evils  corrected  by  orderly  and  systematic 
methods,  nations  are  very  slow  to  give  their  protec- 
tion to  their  citizens  who  engage  in  revolutionary  move- 
ments in  foreign  countries.  They  will,  indeed,  take 
into  consideration  the  fact  whether  or  not  the  alien  acted 
under  compulsion  in  participating  in  the  revolutionary 
movement,  and  whether  or  not  his  participation  was 
rather  for  the  purpose  of  protecting  life  or  property 
than  for  the  purpose  of  rendering  the  revolutionary 
movement  successful.  In  other  words,  they  will  con- 
sider his  intent,  as  well  as  his  acts. 

The  general  rule  seems  to  be  that  if  a  resident  alien 
participates  in  the  revolutionary  movements,  he  does 
so  at  his  own  risk,  and  if  the  nation  of  his  citizenship 
interferes  to  protect  him,  it  will  be  because,  looking 
at  the  question  both  from  the  national  standpoint  and 
the  standpoint  of  the  society  of  nations,  it  is  willing  to 
countenance  or  excuse  the  revolutionary  movement  as 
the  only  reasonable  means  of  combating  intolerable 
oppression.  The  protection  of  the  alien  would  in 
such  case  be  an  incident  of  national  policy.   The  prin- 


464  The  American  Philosophy  of  Government 

ciple  was  thus  expressed  in  a  letter  from  the  Secretary 
of  State  of  this  country  to  our  minister  to  Corea,  in 
1897.     (Moore's  Digest,  Vol.  IV,  p.  15.) 

It  behooves  loyal  citizens  of  the  United  States  in  any- 
foreign  country  whatsoever,  to  observe  the  same  scrupu- 
lous abstention  from  participating  in  the  domestic  concerns 
thereof,  which  is  internationally  incumbent  upon  his  Gov- 
ernment. They  should  strictly  refrain  from  any  expression 
of  opinion  or  from  giving  advice  concerning  the  internal 
management  of  the  country,  or  from  any  inter- 
meddling in  its  political  questions.  If  they  do  so,  it  is  at 
their  own  risk  and  peril.  Neither  the  representative  of 
this  Government  in  the  country  of  their  sojourn,  nor  the 
Government  of  the  United  States  itself,  can  approve  of  any 
such  action  on  their  part,  and  should  they  disregard  this 
advice,  it  may  perhaps  not  be  found  practicable  to  ade- 
quately protect  them  from  their  own  consequences. 

Participation  by  an  alien  in  revolutionary  action, 
therefore,  is  not  a  complete  bar  to  his  own  nation  ex- 
tending him  its  protection ;  but  if  it  does  extend  him  its 
protection,  it  will  be  because  of  its  views  of  national 
and  international  policy  and  of  abstract  right  and 
wrong  as  bearing  on  the  revolution  in  question. 

The  next  question  which  arises  is  as  to  the  effect 
which  voluntary  participation  by  the  alien  in  the  nor- 
mal political  life  of  the  community,  with  its  consent, 
has  upon  the  right  and  duty  of  his  own  nation  to  pro- 
tect him.  Such  an  action  on  his  part  is  analogous  to 
becoming  a  citizen  of  the  nation  of  his  residence,  and 
if  carried  sufficiently  far,  the  nation  of  which  he  is  a 
citizen  may,  it  would  seem,  properly  refuse  him  pro- 
tection on  the  ground  that  his  actions  amount  to  a 
renunciation  of  his  citizenship.  It  seems  that  the 
exercise  of  the  franchise  by  the  alien,  or  even  his  hold- 


The  Alien  in  the  Community  465 

ing  office  in  the  nation  of  his  residence,  or  participa- 
ting in  the  miHtary  service  of  that  nation,  does  not 
of  itself  operate  to  prevent  his  nation  from  extending 
to  him  its  protection;  but  that,  as  bearing  upon  the 
question  whether  the  alien  has  expatriated  himself 
and  forfeited  his  right  to  protection,  such  action  on  his 
part  will  be  considered  as  important  evidence  tending 
to  prove  expatriation.     (Moore's  Digest,  Vol.  Ill,  pp. 

730-735,  783,  785-) 

The  right  of  expulsion  as  respects  civilized  aliens  is 
now  rarely  exercised  by  civilized  nations  except  as 
against  aliens  who  have  participated  in  the  abnormal 
political  life  of  the  community ;  but  it  may  be  exercised 
on  this  ground  without  giving  cause  for  international 
complaint.  The  Alien  and  Sedition  Acts  adopted  by 
the  Congress  of  the  United  States  in  1798  were  entirely 
consistent  with  international  law,  being  directed  against 
alien  political  agitators  who  were  trying  to  engage  this 
nation  in  a  foreign  war  and  probably  also  in  a  civil  war. 
Another  class  of  questions  which  has  arisen  is,  as  to  the 
extent  of  the  protection  which  a  nation  gives  its  citizens 
who  are  residents  in  a  foreign  nation  which  has  a  mili- 
tary conscription  system,  against  the  claim  of  that 
nation  to  compel  them  to  participate  in  its  political 
life  as  soldiers  or  to  pay  a  military  exemption  tax.  The 
law  on  this  subject  is  so  uncertain,  that  the  question  is 
usually  settled  between  particular  nations  by  treaty. 
One  point  seems,  however,  to  be  settled,  namely,  that  in 
case  of  emergency  and  necessity — as,  for  instance,  where 
there  is  danger  of  invasion,  or  of  attack  by  savages — 
the  military  or  constabulary  service  of  aliens,  whether 
residents  or  sojourners,  may  be  compelled.  The  strong 
tendency  seems  to  be  for  nations  to  regard  as  an  un- 
friendly act  compulsion  to  perform  military  service 
exercised  against  their  citizens  by  other  nations  in 
30 


466  The  American  Philosophy  of  Government 

which  they  reside,  but  to  permit  without  remonstrance 
the  taxation  of  such  persons  for  miHtary  purposes,  if 
the  taxation  is  uniform  with  that  imposed  on  other 
persons  for  the  same  purpose.  (Moore's  Digest,  Vol. 
IV,  p.  65.) 

A  question  arises  as  to  the  rights  of  resident  aliens  to 
participate  in  the  political  life  of  the  community  when 
a  country  inhabited  by  civilized  persons  is  ceded  by  one 
nation  to  another.  This  matter  is  generally  regulated 
by  the  treaty  of  cession.  If  the  country  ceded  is  con- 
tiguous to  the  nation  to  which  it  is  ceded,  so  that  it 
can  properly  be  incorporated  with  its  inhabitants  into 
the  body-politic  of  the  nation,  it  is  customary  to  pro- 
vide for  such  incorporation  and  for  citizenship  of  the 
nhabitants  on  equal  terms  with  the  other  citizens  of 
the  nation.  If  the  country  is  non-contiguous,  so  that 
it  is  impossible  to  incorporate  it  in  the  body-politic 
of  the  grantee  nation,  treaty  arrangements  can,  of 
course,  go  no  farther  than  to  recognize  the  ceded 
country  as  having  a  sufficient  degree  of  statehood  so  that 
it  may  have  its  own  citizenship,  and  to  provide  that 
the  civilized  inhabitants  at  the  time  of  cession  shall  be 
citizens  of  the  ceded  country.  Those  general  princi- 
ples have  been  recognized  in  the  treaties  of  cession 
made  to  this  nation. 

A  question  of  the  protection  which  a  nation  gives  to 
its  citizens  residing  abroad,  in  their  political  rights,  led 
to  the  Boer  War.  The  Transvaal  Republic — or,  as  it 
was  called,  the  South  African  Republic — controlled  by 
persons  of  Dutch  descent,  asserted  the  right  to  impose 
such  terms  upon  resident  aliens  with  regard  to  acquir- 
ing citizenship  as  it  might  see  fit,  and  in  fact  im- 
posed such  terms  that  the  acquisition  of  citizenship 
was  made  exceedingly  difficult,  at  the  same  time  taxing 
the  resident  aliens  and  placing  discriminating  burdens 


The  Alien  in  the  Community  467 

on  them.  The  resident  aliens  were  equal  or  superior  in 
civilization  to  the  native  citizens.  They  were  a  mixed 
body  of  persons  who  had  been  attracted  by  the  diamond- 
field  near  Johannesburg  which  began  to  be  ex- 
ploited in  the  year  1886.  The  alien  population,  called 
Uitlanders  by  the  Dutch,  collected  in  towns  and  cities 
on  the  diamond-field — the  Rand,  the  Dutch  popula- 
tion being  scattered  throughout  the  country.  The 
foreign  residents  increased  until  they  nearly  equalled 
the  Dutch  citizens.  The  South  African  Republic  was 
under  the  suzerainty  of  Great  Britain,  and  by  the  con- 
vention determining  the  specifications  of  the  suzerainty, 
all  foreigners  "conforming  to  the  laws"  of  the  state 
were  entitled  to  enter  and  reside  there  and  were  pro- 
tected in  their  civil  rights  and  against  discriminating 
taxation.  Nothing  was  said  in  the  convention  respecting 
their  participation  in  the  political  life  of  the  state,  and 
as  regards  their  political  rights  they  were  subject  to  the 
rules  of  international  law.  The  question  was  treated 
as  one  of  international  law;  the  suzerainty  being  re- 
garded as  limiting  the  right  of  other  nations  to  inter- 
vene but  not  otherwise  affecting  the  case.  Great 
Britain,  in  behalf  of  all  Uitlanders,  insisted  that  it  was 
the  duty  of  the  South  African  Republic  to  provide  a 
method  of  naturalization  of  foreigners  on  reasonable 
terms — the  reasonableness  of  the  terms  to  be  deter- 
mined by  the  custom  of  civilized  nations  as  to  admit- 
ting resident  aliens  to  citizenship.  The  South  African 
Republic  insisted  on  terms  making  the  acquisition  of 
citizenship  much  more  difficult  than  is  customary. 
Lord  Milner,  as  High  Commissioner,  in  his  famous 
dispatch  to  the  Secretary  of  State  for  the  Colonies,  of 
May  4,  1899,  based  the  case  of  Great  Britain  upon  its 
right  of  international  intervention  to  protect  its  citizens, 
partly  on  the  ground  that   the  action  of  the   South 


468  The  American  Philosophy  of  Government 

African  Republic  affected  the  honor  and  vital  interests 
of  Great  Britain,  and  partly  on  the  ground  that  it  was 
for  the  interests  of  civilization  that  the  right  claimed 
by  the  South  African  Republic,  to  keep  civiHzed  resi- 
dent aliens  in  a  status  of  poHtical  inferiority  as  long  as 
it  might  see  fit,  when  they  desired  to  become  citizens, 
should  not  be  yielded  to  by  the  civilized  nations.  In 
that  dispatch  he  said : 

[The  Uitlanders]  have  many  grievances,  but  they  believe 
all  these  could  be  gradually  removed,  if  they  had  a  fair  share 
of  the  political  power.  This  is  the  meaning  of  their  vehe- 
ment demand  for  enfranchisement.  Moreover,  they  are 
mostly  British  subjects,  accustomed  to  a  free  system  and 
equal  rights;  they  feel  deeply  the  personal  indignity  involved 
in  a  position  of  permanent  subjection  to  a  ruling  caste, 
which  owes  its  wealth  and  power  to  their  exertion.  The 
political  turmoil  in  the  Transvaal  Republic  will  never  end 
till  the  permanent  Uitlander  population  is  admitted  to  a 
share  in  the  Government,  and  while  that  turmoil  lasts, 
there  will  be  no  tranquillity  or  adequate  progress  in  Her 
Majesty's  South  African  dominions.    .    .    . 

It  is  this  which  makes  the  internal  condition  of  the  Trans- 
vaal Republic  a  matter  of  vital  interest  to  her  Majesty's 
Government.  No  merely  local  question  affects  so  deeply 
the  welfare  and  peace  of  her  own  South  African  possessions. 
And  the  right  of  Great  Britain  to  intervene  to  secure  fair 
treatment  of  the  Uitlanders  is  fully  equal  to  her  supreme 
interest  in  securing  it.  The  majority  of  them  are  her  sub- 
jects, whom  she  is  bound  to  protect.  But  the  enormous 
number  of  British  subjects,  the  endless  series  of  their  griev- 
ances, and  the  nature  of  these  grievances,  which  are  not 
less  serious  because  they  are  not  individually  sensational, 
makes  protection  by  the  ordinary  diplomatic  means  im- 
possible.  .    .    . 

The  true  remedy  is  to  strike  at  the  root  of  all  these  in- 
juries— the  political  impotence  of  the  injured.     What  diplo- 


The  Alien  in  the  Community  469 

matic  protest  will  never  accomplish,  a  fair  measure  of 
Uitlander  representation  would  gradually,  but  surely, 
bring  about.  It  seems  a  paradox,  but  it  is  true,  that  the 
only  effective  way  of  protecting  our  subjects  is  to  help  them 
to  cease  to  be  our  subjects.   .    .    . 

It  could  be  made  perfectly  clear  that  our  action  was  not 
directed  against  the  existence  of  the  Republic.  We  should 
only  be  demanding  the  establishment  of  rights  which  now 
exist  in  the  Orange  Free  State,  and  which  existed  in  the 
Transvaal  itself  at  the  time  of,  and  long  after,  the  with- 
drawal of  British  sovereignty.  It  would  be  no  selfish  de- 
mand, as  other  Uitlanders  besides  those  of  British  birth 
would  benefit  by  it.  It  is  asking  nothing  from  others  which 
we  do  not  give  ourselves.  And  it  would  certainly  go  to  the 
root  of  the  political  unrest  in  South  Africa,  and  though 
temporarily  it  might  aggravate,  it  would  ultimately  ex- 
tinguish the  race  feud, which  is  the  great  bane  of  the  country. 

Lord  Milner's  position  was  adopted  by  the  British 
Government. 

Professor  Westlake,  in  his  lecture  on  "The  Trans- 
vaal War,"  delivered  in  the  University  of  Cambridge 
on  November  9,  1899,  more  fully  interpreted  the  gov- 
ernment's position  and  justified  the  intervention  of 
Great  Britain  in  the  internal  affairs  of  the  South 
African  Republic  to  secure  for  the  resident  aliens  a 
participation  in  its  political  hfe,  as  one  of  those  extra- 
ordinary rights  which  grow  out  of  an  intolerable  situa- 
tion— the  kind  of  rights  referred  to  in  our  arbitration 
treaties  as  rights  to  protect  the  national  honor  and  vital 
interests.     He  said : 

[This]  is  a  war  between  two  ideals,  of  which  only  one  is  a 
racial  ideal.  On  one  side  we  have  the  EngUsh  ideal  of  a 
fair  field  for  every  race  and  every  language,  accompanied 
by  a  himiane  treatment  of  the  native  races.  .  .  .  The 
other  ideal.  ...  is  founded ...  on  the  desire  to  maintain 


470  The  American  Philosophy  of  Govemment 

the  Dutch  language,  the  Dutch  social  and  political  system, 
and  its  mode  of  treatment  of  the  natives.  We  must  not  at 
once  condemn  an  ideal  because  it  is  a  racial  one.  The 
larger  part  of  the  world  is  governed  by  racial  ideals.  .  .  . 
We  are  in  a  minority  in  having  an  ideal  which  is  not  a  racial 
one,  and  we  must  look  with  respect,  if  not  with  approval, 
upon  ideals  which  present  themselves  to  the  larger  part  of 
civilized  mankind.   .    .    . 

Ideals  are  always  propagandist,  and  there  is  another  cir- 
cumstance about  them,  that  they  admit  of  no  compromise. 
There  may  be  a  compromise  between  different  measures 
proposed  to  be  carried  out,  but  between  two  ideals  there  is 
none.  The  franchise  and  representation  asked  for  by  the 
Uitlanders  by  Sir  Alfred  Milner  could  not  be  otherwise  than 
a  death  blow  to  the  Boer  ideal.  Now  we  may  think,  and  I 
have  no  doubt  that  most  of  us  do  think,  that  the  English 
ideal  is  the  better  of  the  two,  but  that  will  not  give  us  a 
right  to  enter  upon  a  crusade  for  its  propagation.  If  we 
allow  propagandism  to  be  a  cause  for  war  the  result  will 
be  anarchy  throughout  the  world.  And  who  are  we  that 
we  should  take  upon  ourselves  to  say  that  our  own  ideals 
are  not  only  the  best,  but  so  much  the  best  as  to  make  it 
worth  while  to  propagate  them  in  spite  of  the  horrors 
caused  by  the  sword  ?  I  must  say  that  sometimes  I  have 
a  feeling,  which  perhaps  not  many  of  you  share,  when 
I  see  the  extent  to  which  the  English  language  and  institu- 
tions are  spreading  over  the  world,  that  even  if  that  spread- 
ing is  brought  about  solely  by  pacific  and  fair  means,  there 
is  a  possibility  that  that  danger  may  be  incurred  which 
the  poet  has  expressed  when  he  wrote  "Lest  one  good 
custom  should  corrupt  the  world."  I  am  therefore  by  no 
means  inclined  to  hurry  the  extension  even  of  our  own  ideal. 
We  must  then  all  of  us  ask  what  is  the  justification  for 
that  demand  which  Sir  Alfred  Milner  made  at  the  Bloem- 
fontein  Conference  and  which  has  since  been  maintained, 
that  the  EngHsh  ideal  should  be  adopted  in  the  Transvaal 
Republic  or  war  should  follow,  as  it  has  followed.  .  .  . 
I  think  that  the  demand  on  our  part  was  not  founded  on 


The  Alien  in  the  Community  471 

any  legal  right,  but  that  it  may  have  been  justified,  proba- 
bly was  justified,  by  one  of  those  situations  that  occur  in  the 
mutual  relations  of  nations,  soluble  by  no  canons  of  legal 
right,  but  for  which  a  higher  justice  must  be  appealed  to — 
that  larger  justice  which  in  this  country  is  exercised  not  by 
courts  applying  the  law  as  it  is,  but  by  Parliament  altering 
the  law — and  which  is  sometimes  necessary  between  nations, 
bringing  into  operation  demands  not  founded  upon  a  legal 
position  but  upon  the  intolerable  character  which  a  certain 
situation  has  assumed. 

Without  entering  into  a  discussion  of  the  much- 
mooted  question  whether  there  were  not  other  and  less 
worthy  issues  involved  in  the  Boer  War,  it  seems  fair 
to  say,  as  Lord  Milner  did,  that  in  a  case  where  a  nation 
denies  all  participation  in  its  political  life  to  citizens 
of  civilized  nations  of  whose  training  and  capacity  for 
voting  and  governing  there  can  be  no  doubt,  that  nation 
by  its  act  injuriously  affects  these  nations  and  the  so- 
ciety of  nations;  for  such  action,  if  persisted  in  and  if 
followed  by  other  nations,  would  destroy  the  society 
of  nations  and  civilized  society  in  general. 

Had  the  persons  desiring  such  participation  been 
citizens  of  uncivilized  states,  or  citizens  of  civilized 
states  not  having  the  requisite  training  or  capacity, 
the  case  would  have  been  entirely  different.  In  such 
case  there  would  have  been  no  question  of  the  honor 
and  vital  interests  of  the  society  of  nations  being  in- 
juriously affected,  since  it  is  for  the  advantage  of  the 
society  of  nations  and  of  civilization  in  general  that 
the  civilized  nations  should  deal  cautiously  with  the 
uncivilized  nations,  and  should  not  permit  untrained 
or  incapable  persons  to  participate  in  their  political  life 
as  voters  or  governors. 

The  question  of  the  participation  of  resident  aliens 
in  the  political  life  of  the  community  is  thus  seen  to 


472  The  American  Philosophy  of  Government 

involve  the  most  fundamental  principles  in  interna- 
tional life.  To  deny  them  all  such  participation  is  to 
destroy  the  society  of  nations  by  fostering  national 
and  racial  unsociability;  to  allow  unlimited  participa- 
tion is  also  to  destroy  the  society  of  nations  by  allowing 
lower  standards  of  civilization  to  pull  down  higher 
standards  and  thus  to  produce  social  chaos.  Those 
capable  of  exercising  the  franchise  and  the  govern- 
mental power  should,  in  the  interests  of  the  society  of 
nations,  have  participation  in  the  governments  of  their 
choice;  those  incapable  should  be  gradually  rendered 
more  capable  until  their  limit  of  capacity  is  reached, 
and  participation  in  political  life  should  follow  promptly 
upon  attainment  of  the  capacity  for  such  participation. 
On  the  other  hand,  racial  and  national  ideas  are  to  be 
respected  and  even  fostered,  so  far  as  they  are  not  in- 
consistent with  the  preservation  of  the  society  of  na- 
tions. No  more  delicate  or  important  task  rests  upon 
a  government  than  that  of  deciding  upon  the  nature 
and  degree  of  the  protection  which  it  shall  give  to  its 
citizens  resident  in  other  nations  who  participate  in 
the  normal  or  abnormal  political  life  of  the  community, 
or  who  are  compelled  against  their  will  to  so  partici- 
pate, or,  who,  being  qualified  by  capacity  and  training 
to  vote  and  govern,  desire  to  become  citizens  of  the 
nation  of  their  residence  and  are  denied  this  privilege. 


LIST  OP  REFERENCES 

Bentham,  Jeremy.    Principles  of  Morals  and  Education,  424 

Blackstone.     Vol.  iv.,  121 

BONFiLs'  Manual  de  Droit  International  Public,  19,  21 

Bryant's  History  of  the  United  States,  vol.  iv.,  150,  151 

Cleveland,  G.     The  Government  and  the  Chicago  Strike,  151 

Congressional  Record,  Senate  Proceedings  for  i8q4,  151 

CooLEY,  T.  M.     Reports  of  the  American  Bar  Association,  i8q4,  151 

Foster,  Roger.     Treatise  on  Federal  Practice,  122 

Freeman.     On  Executions,  vol.  i.,  121 

Grotius.     Three  Books  of  Peace  and  War,  70 

Holland,  Prof.     Jurisprudence,  398-399 

MacMasters,  J.  B.,  and  Stone,  F.  D.    Pennsylvania  and  the  Federal 

Convention,  141 
Madison,  Life  and  Letters  of,  vol.  ii.,  142 
Moore's  Digest,  464,  465,  466 
Phillips,  P.     Statutory  Jurisdiction  and  Practice  of  the  Supreme  Court, 

122 
Rawle,  William.     View  of  the  Constitution  of  the  United  States,  304, 

309,  316 
Scott,  James  Brown.     Hague  Convention  and  Declaration  of  iSqq  and 

1907,  139-140 
Snow,  Alpheus  H.     Administration  of  Dependencies,  139 

Proceedings  of  the  American  Political  Science  Association  of  IQ13,  15 
SoHM,  Rudolph.     Institutes  of  the  Roman  Law,  128 
Taylor,  Hannis.     Jurisdiction  and  Procedure  of  the  Supreme  Court  of 

the  United  States,  122 
Westlake,  Prof.     International  Law,  401-402,  427 
White,  Chief  Justice.     Insular  Cases,  303 


473 


-    INDEX  OF  JUDICIAL  CASES 

Calvin's  Case,  79,  81,  117 

Campbell  v.  Hall,  96,  117 

Chisholm  v.  State  of  Georgia,  120,  134,  141 

City  of  London  v.  Wood  (Chief  Justice  Holt),  196 

Coke,  Lord,  on  Bonham  Case,  195 

Day  V.  Savadge  (Hobart),  195-196 

Dorr  V.  United  States,  16 

Downes  v.  Bidwell,  1 1 ,  303-304 

Dred  Scott  Case,  115,  116 

Empire  v.  Union,  29 

Ex  parte  Merryman,  case  of,  decided  by  Chief  Justice  Taney,  143 

Ex  parte  Siebold,  132 

Geofroy  v.  Riggs,  39 

Gordon  v.  United  States,  132 

Hawaii  v.  Mankichi,  16 

Kepner  v.  United  States,  15,  16 

Logan  V.  United  States,  11,  15 

Louisiana,  State  of,  v.  Jumel,  145 

Louisiana,  State  of,  v.  Texas,  State  of,  134,  148 

Minor  v.  Happersett,  462 

Nathan  v.  Commonwealth  of  Virginia,  135 

New  Hampshire  v.  Massachusetts,  98 

Penn  v.  Lord  Baltimore,  97 

Postnati,  case  of,  79,  81 

Rees  V.  City  of  Watertown,  134 

South  Dakota  v.  North  Carolina,  134,  136 

United  States  Bank  v.  Halstead,  120,  131 

Virginia,  State  of,  v.  West  Virginia,  State  of,  115,  116,  117,  134,  144, 

152,  153 

Wayman  v.  Southard,  130 


475 


INDEX  OF  SUBJECTS 


Act,  Judiciary,  of  Constitution, 

1789,  130,  132 
Act,  Process,  1789,  130,  132 
Adams,  John,  account  of  drafting 
the   first   resolutions  of  the 
Continental  Congress,  196 
on  the  opening  of  the  Continen- 
tal Congress,  47 
Administration     of   Dependencies, 

A.  H.  Snow,  139 
Aliens,  abroad,  446-468 

civilized,  right  of  expulsion  of, 

462-466 
political  rights  of,  461-462 
resident,  right  to  participate  in 

political  life,  466 
resident,  participation  in  open 
revolutionary  movement,  462- 

right  of  protection  which  a  na- 
tion gives  to  its  citizens,  38 

Amendments  of  the  Constitution, 
thirteenth,  fourteenth,  and 
fifteenth,  cause  of,  115 

America  and  India,  opening  the 
sea-route  to,  84 

America,  power  over  insular 
regions,  38 

American  colonies,  basis  of  eco- 
mic  ideas,  72-73 
basis  of  social  ideas,  72 

American  ideas,  as  to  how  a  union 
of  states  may  be  effected, 
162-163 

American  Institute  of  Interna- 
tional Law,  declaration  of, 
225 

American  Peace  Society,  declara- 
tion of,  225 

American  Philosophy  of  Govern- 
ment and  its  effect  on  Inter- 
national Law,  5-33 

American  Philosophy  of  Govern- 
ment, in  the  way  of  a  codifi- 
cation of  International  Law, 
32-333 


American  policy,  on  judical 
unions,  260-263 

American  republics,  union  of,  by 
Congress,  168-169 

American  Revolution,  philosophy 
of,  42-44 

American  statesmen,  views  of,  on 
the  connection  between  Great 
Britain  and  the  Colonies, 
from  1764-1776,  61-65 

Arbitration  Court,  Permanent  In- 
ternational, at  first  Hague 
Conference,  139-141 

Arbitral  process  in  dispute,  defi- 
nition of,  389-390 

Arbitration,  definition  of,  as  used 
in  political  literature,  383 

Arbitration  treaty,  between  the 
United  States  and  Great 
Britain,  238 

Army  Appropriation  Act,  312 

Articles  of  Confederation,  on  es- 
tablishment of,  tribunals  for 
the  pacific  settlement  of  dis- 
putes between  states,  140 
given  the  sanction  of  mutual 
agreement  of  states,  and  the 
powers  granted  by,  106 
the  last  resort  of  appeal,  67 

Artificial  or  remedial  rights,  1 1 


B 


Bacon,  Francis,  on  dispute  be- 
tween England  and  Scotland, 

79 

Balance  of  power,  6-7 

Belgium,  protest  against  the  dis- 
tribution of  the  German 
Colonies  as  arranged  by  the 
Covenant  of  the  League  of 
Nations,  368 

Bentham,  Jeremy,  invention  of 
expression  * '  international 
law,"  424 

Berlin  African  Conference,  neu- 
tralization of  Congo  Basin, 
363-364 


477 


478 


Index 


Bill  of  Rights,  17 
constitutional,  237 

Blackstone,  on  contempt  against 
the  King's  Prerogative,  121 

Body  of  Liberties,  27 

Boer  War,  cause  of,  466-469 

Bonfils'  Manual  de  Droit  Inter- 
national Public — -rights  of 
man;  rights  of  individuals  as 
citizens  of  a  national,  against 
another  nation,  19-21 

Bradley,  Justice,  on  power  of  the 
United  States  courts  to  issue 
all  writs  which  may  be  ne- 
cessary to  their  respective 
jurisdiction,  132 

Brewer,  Justice,  on  South  Dakota 
V.  North  Carolina,  134,  136 

British  policy  on  the  "open  door" 
in  China,  349-350 

Burke,  Speech  on  American  Taxa- 
tion, 102 
Speech  on  Conciliation,  105 


Calvin,  John,    "Institutes  of  the 
Christian  Religion  "  on  Moral 
Law,  159 
philosophy  of,  43 

Calvin's  case,  79,  81,  117 

Case  of  the  Postnati,  79,  81 

Cassini  Convention,  Russia's 
lease  of  Kiaochoa  Bay,  348 

Central  America,  philosophy  of 
government  of  the  republics 
of,  30 

Charles  I.,  abolishment  of  the 
Virginia  Company,  85-86 

Charles  IL,  final  section  of  the  in- 
struction of,  to  the  Council  of 
Foreign  Plantations,  139 
recognition    of    the    American 
Colonies,  93-94 

Charter  of  1606  (James  I.),  claims 
in  North  America,  81-83 

Charter  of  1609  (James  I.),  effect 
on  Virginia,  84-85 

Charter  to  Company  of  Massa- 
chusetts Bay,  85-90 

Charter  to  Providence  Plantation, 
90-91 

Chief  Executive  in  a  Justiciar 
State,  powers  of,  59 

Choate,  Rufus,  on  equal  rights,  41 

Christian  Society  of  the  Early 
Church,  law  of,  422 


Cleveland,  President,  executive 
powers  over  the  United 
States  mails  and  interstate 
commerce,  151 

Coke,  Lord,  on  Bonham's  Case, 

195 

Colonial  Charters,  40 

"Colonial  Pact"  theory,  91 

Colonies  converted  into  Royal 
Provinces,  94 

Commission  of  Judicative  Con- 
ciliation, difference  between, 
and  Court,  384-385 

Conciliation,  definition  of,  as 
used  in  political  literature, 
382 

Confederation  or  League  of  Na- 
tions, plan  for,  286-287 

Congress,  action  of,  on  extension 

of  Constitution,  39 

right  of,  to  determine  whether 

the  United  States  shall  enter 

the  League  of  Nations,  308- 

309 

Connecticut,  charter  of,  on  rights 

of  citizens  to  elect  their  own 

officers,  1 80-1 81 
Constitutional  Bill  of  Rights,  237 
Constitutional    prohibitions,    16- 

18,  25-28 
Constitution  of  the  United  States, 

theory  of  Supremacy  of,  108 
adoption  of,  234-235 
on  claims,  individual,  against  a 

foreign  government,  21-25 
on  care  of  President  to  see  that 

the  laws  are  executed,  147 
defects  of,  164-165 
fourteenth       amendment      of, 

adopted,  198 
judicial  powers  of,  107 
on  jurisdiction  to  render  a  direct 

judgement  against  a  member- 
state  of  the  Union,  118 
on  the  powers  of  the  President, 

121-122 
protection      of      fundamental 

rights,  14-17 
Constitution,  American,  as  logical 

application    of    fundamental 

law,  161 
Continental     Congress,     Adams' 

account  of,  196 
as  agent  of  colonies,  180 
decision  as  to  whether  American 

Colonies  should  remain  a  part 

of  the  British  Empire,  103 


Index 


479 


Convention  for  Pacific  Settlement 
of  International  Disputes, 
Hague,  209-211,  223,  238- 
240,  236-266 

Cooperation  versus  Compulsion 
in  the  Organization  of  the 
Society  of  Nations,  269-281 

Cooperative  union,  as  applied  to 
a  minor  groupe,  293 
of  nations,  295-298 

Corporations,  principles  of  law  of, 
181-182 
theory  of  State  of,  183-193 
four  subjects  dealt  with  in  the 
theory  of  State,  193-194 

Council  for  National  Defence, 
312-315 

"Council  for  New  England,"  85 
surrender  of  Charter  and  Let- 
ters Patent,  86 

Council  of  Three,  368,  379-381 

Council  of  Trade,  91 

Council  of  Virginia,  provided  by 
Charter  of  1606,  82-83 

Court  of  Arbitral  Justice,  estab- 
lishment of,  69-70,  75 

Courts,  protection  of,  27 

Covenant  of  the  League  of  Na- 
tions, German  Colonies,  366 
provisional     organization     for, 
366-367 

Covenant  of  the  League  of  Na- 
tions,  Constitution  of,  321- 

324 
effect  of,  311 
form  of,  157 

obligations  under,  165-168,  305 
provision  of,  165-166 
rules  of,  329-332 
safe-guards  of,  324-329 
situations    which    arise     from 

proposals  of,  301-302 
as   a   super-constitution  of    a 

super-unity,  305 


Declaration      of      Independence, 
based  on  the  doctrines  of  the 
Reformation,  47 
denies  claim  of  Great  Britain  to 
exercise  absolute  power  over 
the  American  Colonies,  103 
free  Statehood  of,  50-53,  56-57 
on  fundamental  rights,  lo-ii 
how  governments  are  instituted, 
162 


on  inalienable  rights,  48-50 
preamble  of,  40-41,  48 
spirit  of  the  Constitution,  39-41 
term ' '  connection ' '  as  used  in,  5 1 
on  doctrine  of  extension  of  the 
British   Constitution  to   the 
American  Colonies,  40 
Declaration  of  Independence,  as 
the    Fundamental   Constitu- 
tion  of   the  United  States, 
37-66,  233-234 
Declaratory  Act  and  the  Tea  Act, 

lOI 

Department  of  Foreign  Affairs  or 
Department  of  State,  31 

Development  of  the  American 
Doctrine  of  Jurisdiction  of 
Courts  over  States,  62-1 12 

Dred  Scott  Case,  115,  116,  117 


Ellsworth,  Oliver,  on  organizing 
the  judiciary  of  the  United 
States,  122 

Empire  v.  Union,  39 

English,  Habeas  Corpus  Act,  27 
Petition  of  Rights,  27 

Executions,  Freeman  on,  121 

Execution,  of  Judgements  against 
States,  1 15-154 

a.  judgements   against    States, 
115-119 

b.  nature  of  the  power  of  execu- 
tion, I 19-128 

c.  source  of  power,  127-132 

d.  extent  of  power,  132-145 

e.  manner  of  exercising  power, 
145-154 


Fabian  Society  of  London,  plan 

of,  269-270 
Field,  Justice,  on  case  of  Geofroy 

V.  Riggs 
Fourteen  Points,  the  fifth,  364 
Fox,  philosophy  of,  43 
France,  constitutional  law  of,  on 

arbitration,  258 
obtains  terminal  port  in  China, 

351 

Free  trade  established  among  the 
Confederates  in  Massachu- 
setts, 90 

French  Revolution,  philosophy  of, 
42 


48o 


Index 


Fuller,  Chief  Justice,  on  State  of 

Louisiana  v.  Texas,  148 
Fundamental  law,  12,  23-25 
Fundamental  rights,  12 
as  created,  23 
as  recognized  and  safe-guarded 

by  nations,  13-19 
doctrines  of,  26 


General    Assemblies    or    Courts, 

88-89 
Germany,  Colonies  of,  at  the  end 
of  the  Great  War,  359-361 
Council  of  Three,  action  Ger- 
man Colonies,  368-371 
resistance  of,  against  the  Allies, 

362 
Great     Britain     and     France 

arrange  for,  361 
Great      Britain      and      Japan 

arrange  for,  361-362 
Japan  acquires,  372 
United  States  acquires,  372 
Germany's    privilege    in    China 

under  the  Treaty,  353-356 
Government,  American  system  of, 

236-237 
as  a  corporation,  18 
European    system    of,    legally 

unlimited,  236 
limitations  of  power  of,  28 
Government,  popular  tendency  of, 
8 
right  of  self-government,  56 
Gray,     Justice,     on     Downes    v. 

Bidwell  Case,  303-304 
Great  Britain,  claims  in  China  at 
the  close  of  the  Opium  War, 

347  .      ^,  . 

compensations  m  Chma,  351- 

352 
law,  basis  of,  439 

Great  Britain  and  Russian  dis- 
pute, during  the  Russo- 
Japanese  War,  375-377 

Grotius,  Three  Books  of  Peace  and 
War,  on  power  which  a  state 
ought  to  exercise  over  its 
colonies,  70-72 

H 

Habeas  Corpus,  writ  of,  122 
Hague  Conference,  first,   Perma- 
nent   International    Arbitra- 
tion Court,  139-140 


proposed    new   court  of,    455- 

457  .  ,  ^    , 

Hague  Convention  and  Declara- 
tion of  1899  and  1907  (James 
Brown  Scott),  139-140 
Hague  Convention,  on  Pacific 
Settlement  of  International 
Disputes;  on  Great  Britain 
and  Russian  dispute  during 
the     Russo-Japanese     War, 

375-377  ^    ^ 

on    Commissions    of    Inquiry, 

380-381 
on  Judicative  Conciliation,  381- 

382 
organizations    of,    nations   for, 

279-281 
recommendations   of,    209-211, 
223,  238-240,  263-266 

Hardwick's  motion  in  Case  of  Penn 
V.  Lord  Baltimore,  97-98 

"Hay  Proposals"  on  British 
policy  in  China,  350 

High  Court  of  the  Inquisition 
(Spain),  166 

High  Court  of  the  Star  Chamber 
(England),  169 

Hoadly,  Bishop  Benjamin,  Essays 
on  the  Origin  and  Institutions 
of  Civil  Government,  159 

Hobart,  on  Day  v.  Savadge,  195- 
196 

Holland,  on  codification  of 
International  Law,  398-401 

Holmes,  Justice,  on  Case  of  Vir- 
ginia V.  State  of  West 
Vriginia,  152-153 

Holt,  Chief  Justice,  on  City  of 
London  v.  Wood,  196 

Hooker,  Richard,  Concerning 
Laws  and  their  Several 
Kinds  in  General,   159 

Holy  Alliance,  threatened  to  ex- 
tend the  European  system 
over  South  America,  235 

Holy    Roman    Empire,    Imperial 
Chamber  of,  138-139 
laws  of,  422 

House  of  Burgesses,  84 

Hull,  W.  L.,  suggestion  for  defi- 
nition of  International  Law, 
425-426 


Imperial  Federation  League,  214 
India  and  America,  opening  of  the 
sea- route  to,  41 


Index 


481 


Ingalls,  John  James,  on  equality 

of  man,  41 
International     Arbitration      and 

Disputes,  31 
International     arrangements     of 

1898,  on  China,  353 
International  Bureau  of  the  Uni- 
versal Post  Union,  223 
International  Court,   question  of 
a   true   International  Court, 
109-112 
of  Arbitration,  Permanent,  221- 

223 
and  of  Arbitral  Justice,  221-223 
International    conciliative    body, 
216-218,  228-230 
political  body  of,  218-219 
ordinary    directorate    of,  219- 
221,  225-228,  290-293 
International      government      by 
physical   force,    question   of, 
211-216 
International  Law  and  Political 

Science,  439-457 
International    Law,    among    na- 
tions, passing  away  of ,  453-457 
changes  recognized  in  Europe, 

19-20 
codification  of  (Prof.  Holland), 

398-401;  (Westlake,  401) 
definition  of,  424-426 
old  theory  of,  19 
regarded    as    the    Society    of 

Nations,  406-409 
requirements     of     codification, 
402-404 
International      Legislative      and 

Administration,  209-230 
Iredell,   Justice,   on   Chisholm   v. 
State  of  Georgia,  134 


Jackson,  President,  exercising  ex- 
ecutive powers  against  South 
Carolina,  1 50-1 51 
proclamation  of  1832,  146 

James  I.,  Charter  1606,  claims  in 
North  America,  81-84 
relations  between  Great  Britain 
and  American  colonies,  117 

James     II.,     charter     converting 
colonies  into  Royal  Provinces, 

94 
James  VI.,  power  of,  77-85 
Japan,  acquires  German  colonies, 

372 


ejected  from  Manchuria,  347 
indemnity     to     England     and 
Germany,  352 

Jay,  Chief  Justice,  on  Case  of 
Chisholm  v.  State  of  Georgia, 
120,  124,  141 

Jefferson,  Thomas,  on  intervening 
years  between  assembling  of 
Congress  and  the  promulga- 
tion of  the  Declaration  of 
Independence,  47 

Judicative  conciHation,  375-394* 
388-389  .        ,  ,  ,     , 

Judicial  process,  action  of,  denned, 

389 
Judiciary  acts,  130,  132 
Judgement  against  States,  1 1 5-1 19 
"Justiciar  State,"  chief  executive 
in,  and  powers  of,  59 
legislative  assembly  in,  59 
right  of  self-government,  57-59 • 
61 


K 


"King  in  Council,"  definition  of, 
76 
jurisdiction  of,  76 
powers  of,  under  James  I.,  80 
as  regulated  by  Parliament,  88 
Supreme  Court  of  Appeals,  of 
the  Empire,  96-97,  106-107 
King's     councils,     admission     of 

merchants  to,  83-84 
Knox,  Secretary,  on  the  Pending 
Arbitration     Treaties,     224- 
226 
binding   of   the   interpretation, 
247-248 

.L 

Lamsdorff,    Count,   proposals   at 
the  Hague  Convention,  378 
on  the  recommendations  at  the 
Hague  Convention,  380 
Laud,    Archbishop,    arbitrariness 

of,  87 
Law,  fundamental,  12-25 
Law  of  nations,  421-435 
League  of  Nations,  according  to 
the  American  idea,  I57-I5i» 
158,  169-171 
Belgium  Protest,  368 
consideration  of,  271-279 
constitution  of,  321-324 
covenant  of,  157,  305 


482 


Index 


League  of  Nations — Continued 
effect  of,  3 10-3 1 1 
safe-guards  of,  324-329 

League  of  Nations,  Covenant  of, 
disposition    of    the    German 
Colonies,  367 
novelty    of    "Mandatory    Sys- 
tem," 332-333 
provisional     organization      of, 

366-367 
rules  of  ineligibility,  329-332 

League  to  Enforce  Peace,  plan  of 
Constitution,  270-271 

Lee,  Richard  Henry,  Bill  to  regu- 
late Processes  in  the  Courts 
of  the  United  States,  123 

Legal  Limitations  of  Arbitral 
tribunals,  232-266 

Legislative  assembly  in  a  Justiciar 
State,  powers  of,  59 

Legislative  law,  external  and  su- 
preme, 9-1 1 

Lincoln,  Abraham,  on  equality  of 
men,  41 

Luther,  philosophy  of,  140 


M 


MacDonald,  Sir  Charles,  letters 
to  Lord  Salisbury,  on  con- 
troversy between  China  and 
Germany,  340-341 

Madison,  President,  letters  to 
Governor  Snyder,  on  Penn- 
sylvania statute  conforming 
to  judgement  of  United  States 
Court,  142 

Magna  Charta,  27,  179 

Manchuria,  Japan  ejected  from, 
347 

Mandatory  System  under  the 
Covenant  of  the  League  of 
Nations,  321-336 

Manual  de  Droit  International 
Public  (Bonfils),  19-21 

Marshall,  Chief  Justice,  on  powers 
of  United  States  Courts  to 
issue  all  compulsory  processes 
necessary  for  the  exercise  of 
their  respective  jurisdiction, 
130-131 

Massachusetts    Bay,    "Body    of 
Statutes,"  89 
colonies  of,  89 
commonwealth  of,  89 
principles     that      govern     the 
charter,  179 


Massachusetts     Bay     Company, 
Charter  of,  85-90 
general  courts  of ,  88 
surrender  of  charter,  87 
Massachusetts  Body  of  Liberties, 

180 
Mayflower  Compact,  183 
Mediation,  definition  of,  as  used 
in    political    literature,    383- 

384 
Mercantile  system  in  England,  99 
Milner,   Lord,  on  right  of  inter- 
national intervention  of  Great 
Britain  to  protect  its  citizens 
in  Africa,  467-468 
Monroe  Doctrine,  basis  of,  29-32 
Monroe,    President,    message    to 
Congress    on    the    European 
System,  235 
Moore's  Digest,  on  participation 
in  open  revolutionary  move- 
ment by  aliens,  464-466 


N 


National  honour,  6-7 

Nature  of  power  of  execution,  in 
judgement  against  States, 
1 19-126 

Navigation  Act,  passed,  91-93 

New  England,  United  States 
colonies  of,  Articles  of  the 
Confederation  on,  89-90 

New  Hampshire  against  Massa- 
chusetts, disputed  boundaries 
of,  98-99 

New  National  Processes  and 
Organs,  301-317 

North  Sea  Incident,  379 


"Open  Door"  policy  in  China, 
349-352 

Opium  War,  Great  Britain's 
claims,  347 

Organization,  Cooperative,  defini- 
tion of,  according  to  political 
literature,  386-388 

Organized  communities  as  cor- 
porations, 18 

Oriental  trade,  closing  of  the 
Mediterranean  to,  by  the 
Mohammedans,  and  the  re- 
sults of,  84 

Otis,  James,  196 


Index 


483 


le  Facte  Colonial  (in  France),  99 
Fan -American    Union,    168-169, 

Pa:ticipation  by  the  aliens  in  the 
political  life  of  the  commun- 
ity, 461-472 
organization  of,  365 

Feace  Conference,  delegates  to, 
365-366 

Feace     Treaty,      disposition     of 
German   colonies,  369-370 
on  the  Shantung  question,  339 
signed  by  the  Germans,  368 

Fermanent  International  Court 
of  Arbitration  and  Fermanent 
Court  of  Arbitral  Justice, 
221-223 

Fetition  of  Rights,  194-195 

Fhilippines,  Commission  for  tak- 
ing over  the  civil  government 
.  of,  15 

Fhilosophy  of  Government,  differ- 
ence between  that  of  the 
United  States  and  that  of 
other  governments,  27 
that  of  continental  Europe, 
29 

Fhilosophy  of  Fopular  Govern- 
ment, tendency  of,  8 

Folitical  equilibrium  or  status 
quo,  6 

Folitical  Science,  development  of, 
440-442 
new  philosophy  of,  443-445 

Fosition  of  the  Judiciary  in  the 
United  States,  175-209 
fundamental   proposition   upon 
our  system  rests,  177 

Fostnati,  case  of,  79,  81 

Fresident,  reason  why  power  to 
make  treaties  was  conferred 
on,  and  on  the  Senate,  309- 
310 

Process  Act,  130,  132 

Property,  rights  of,  as  a  funda- 
mental, 13 

Proposed  codification  of  Interna- 
tional Law  and  the  relation 
of  codification  to  the  Fro- 
posed  establishment  of  a 
Supreme  International  Court 
of  Arbitral  Justice,  397- 
418 

Providence  Plantation,  charter  of, 
90 


Q 


Queen  in  council,  76-77 

Question  by  what  process  shall 
the  United  States  enter  into 
a  treaty  of  union  having  the 
effect  to  supersede  in  part 
the  Constitution  of  the  United 
States,  306-308,  312-314 

Question  of  compulsory  execution 
of  the  judgements  of  a  court 
of  a  federal  or  federaHstic 
union  against  a  member- 
state  of  the  Union,  116-118 

Question  of  the  desirability  of  a 
state  accepting  a  mandate 
of  the  League  under  the 
Covenant  in  its  present  form, 
333-336 

Question  of  the  study  of  interna- 
tional political  science  to 
promote  judicative  concilia- 
tion, 391-393 

Question  of  terminology,  37 
decision  of  the  Supreme  Court 
on,  38 

Question  of  a  true  International 
Court,  109-112 

Question  of  whether  a  physical- 
force  International  Govern- 
ment is  politically  practi- 
cable, 21 1-2 I 6 


Randolph,  Edmund,  on  Case  of 
Chisholm  v.  State  of  Georgia, 
120 

Rawle,  Wilham,  on  the  reason 
why  treaty-making  power 
was  conferred  on  the  Fresi- 
dent and  the  Senate,  304, 
309-310 

Reformation,    argument    of    the 
publicists  on,  423-424 
evolving  law  of  nations,  423 
philosophy  of,  44-46 

Rhode  Island  Charter,  on  right 
of  citizens  to  elect  their  own 
officers,  180 

Richelieu ,  ' '  Colonial  Fact ' ' 
theory,  91 

Right  of  intervention  of  American 
republics,  29 

Right  of  property,  13,  160 

Rights,  artificial,  or  remedial, 
definition  of,  1 1 


482 


Index 


League  of  Nations — Continued 
effect  of,  3 1 0-3 1 1 
safe-guarris  of,  324-329 

League  of  Nations,  Covenant  of, 
disposition    of    the    German 
Colonies,  367 
novelty    of    "Mandatory    Sys- 
tem," 332-333 
provisional     organization      of, 

366-367 
rules  of  ineligibility,  329-332 

League  to  Enforce  Peace,  plan  of 
Constitution,  270-271 

Lee,  Richard  Henry,  Bill  to  regu- 
late Processes  in  the  Courts 
of  the  United  States,  123 

Legal  Limitations  of  Arbitral 
tribunals,  232-266 

Legislative  assembly  in  a  Justiciar 
State,  powers  of,  59 

Legislative  law,  external  and  su- 
preme, 9-1 1 

Lincoln,  Abraham,  on  equality  of 
men,  41 

Luther,  philosophy  of,  140 


M 


MacDonald,  Sir  Charles,  letters 
to  Lord  Salisbury,  on  con- 
troversy between  China  and 
Germany,  340-341 

Madison,  President,  letters  to 
Governor  Snyder,  on  Penn- 
sylvania statute  conforming 
to  judgement  of  United  States 
Court,  142 

Magna  Charta,  27,  179 

Manchuria,  Japan  ejected  from, 
347 

Mandatory  System  under  the 
Covenant  of  the  League  of 
Nations,  321-336 

Manual  de  Droit  International 
Public  (Bonfils),  19-21 

Marshall,  Chief  Justice,  on  powers 
of  United  States  Courts  to 
issue  all  compulsory  processes 
necessary  for  the  exercise  of 
their  respective  jurisdiction, 
130-13 1 

Massachusetts    Bay,     "Body    of 
Statutes,"  89 
colonies  of,  89 
commonwealth  of,  89 
principles     that      govern     the 
charter,  179 


Massachusetts     Bay     Company, 
Charter  of,  85-90 
general  courts  of,  88 
surrender  of  charter,  87 
Massachusetts  Body  of  Liberties, 

180 
Mayflower  Compact,  183 
Mediation,  definition  of,  as  used 
in    political    literature,    383- 

384 
Mercantile  system  in  England,  99 
Milner,   Lord,  on  right  of  inter- 
national intervention  of  Great 
Britain  to  protect  its  citizens 
in  Africa,  467-468 
Monroe  Doctrine,  basis  of,  29-32 
Monroe,    President,    message    to 
Congress    on    the    European 
System,  235 
Moore's  Digest,  on  participation 
in  open  revolutionary  move- 
ment by  aliens,  464-466 


N 


National  honour,  6-7 

Nature  of  power  of  execution,  in 
judgement  against  States, 
1 19-126 

Navigation  Act,  passed,  91-93 

New  England,  United  States 
colonies  of.  Articles  of  the 
Confederation  on,  89-90 

New  Hampshire  against  Massa- 
chusetts, disputed  boundaries 
of,  98-99 

New  National  Processes  and 
Organs,  301-317 

North  Sea  Incident,  379 


O 


"Open  Door"  policy  in  China, 
349-352 

Opium  War,  Great  Britain's 
claims,  347 

Organization,  Cooperative,  defini- 
tion of,  according  to  political 
literature,  386-388 

Organized  communities  as  cor- 
porations, 18 

Oriental  trade,  closing  of  the 
Mediterranean  to,  by  the 
Mohammedans,  and  the  re- 
sults of,  84 

Otis,  James,  196 


Index 


483 


le  Facte  Colonial  (in  France),  99 
Pan -American    Union,    168-169, 

Participation  by  the  aliens  in  the 
political  life  of  the  commun- 
ity, 461-472 
organization  of,  365 

Peace  Conference,  delegates  to, 
365-366 

Peace     Treaty,      disposition     of 
German   colonies,  369-370 
on  the  Shantung  question,  339 
signed  by  the  Germans,  368 

Permanent  International  Court 
of  Arbitration  and  Permanent 
Court  of  Arbitral  Justice, 
221-223 

Petition  of  Rights,  194-195 

Philippines,  Commission  for  tak- 
ing over  the  civil  government 

of,  15 

Philosophy  of  Government,  differ- 
ence between  that  of  the 
United  States  and  that  of 
other  governments,  27 
that  of  continental  Europe, 
29 

Philosophy  of  Popular  Govern- 
ment, tendency  of,  8 

Political  equilibrium  or  status 
quo,  6 

Political  Science,  development  of, 
440-442 
new  philosophy  of,  443-445 

Position  of  the  Judiciary  in  the 
United  States,  175-209 
fundamental   proposition   upon 
our  system  rests,  177 

Postnati,  case  of,  79,  81 

President,  reason  why  power  to 
make  treaties  was  conferred 
on,  and  on  the  Senate,  309- 
310 

Process  Act,  130,  132 

Property,  rights  of,  as  a  funda- 
mental, 13 

Proposed  codification  of  Interna- 
tional Law  and  the  relation 
of  codification  to  the  Pro- 
posed establishment  of  a 
Supreme  International  Court 
of  Arbitral  Justice,  397- 
418 

Providence  Plantation,  charter  of, 
90 


Queen  in  council,  76-77 

Question  by  what  process  shall 
the  United  States  enter  into 
a  treaty  of  union  having  the 
effect  to  supersede  in  part 
the  Constitution  of  the  United 
States,  306-308,  312-314 

Question  of  compulsory  execution 
of  the  judgements  of  a  court 
of  a  federal  or  federalistic 
union  against  a  member- 
state  of  the  Union,  116-118 

Question  of  the  desirability  of  a 
state  accepting  a  mandate 
of  the  League  under  the 
Covenant  in  its  present  form, 
333-336 

Question  of  the  study  of  interna- 
tional political  science  to 
promote  judicative  concilia- 
tion, 391-393 

Question  of  terminology,  37 
decision  of  the  Supreme  Court 
on,  38 

Question  of  a  true  International 
Court,  109-112 

Question  of  whether  a  physical- 
force  International  Govern- 
ment is  politically  practi- 
cable, 21 1-2 I 6 


R 


Randolph,  Edmund,  on  Case  of 
Chisholm  v.  State  of  Georgia, 
120 

Rawle,  William,  on  the  reason 
why  treaty-making  power 
was  conferred  on  the  Presi- 
dent and  the  Senate,  304, 
309-310 

Reformation,    argument    of    the 
pubHcists  on,  423-424 
evolving  law  of  nations,  423 
philosophy  of,  44-46 

Rhode  Island  Charter,  on  right 
of  citizens  to  elect  their  own 
officers,  180 

Richelieu ,  * '  Colonial  Pact ' ' 
theory,  91 

Right  of  intervention  of  American 
republics,  29 

Right  of  property,  13,  160 

Rights,  artificial,  or  remedial, 
definition  of,  1 1 


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